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[2025] NSWCCA 169
Court of Criminal Appeal (NSW)
2025-10-22
Harrison CJ at CL at [1], Hamill J at [10], Sweeney J at [11]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Manudhane v R [2025] NSWCCA 169
Hearing dates: 27 August 2025
Date of orders: 22 October 2025
Decision date: 22 October 2025
Before: Harrison CJ at CL at [1];
Hamill J at [10];
Sweeney J at [11]
Decision: (1) Extend the time for filing the Notice of Appeal to 7 May 2025.
(2) Refuse leave to appeal, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), for Grounds 2 and 3.
(3) Grant leave to appeal in respect of Grounds 1A, 1B, 1C, 4 and 5.
(4) Dismiss the appeals against conviction and sentence.
Catchwords: CRIME — appeals — appeal against conviction — indictment containing 12 counts — offences of intimidation, assault, choking and sexual assault — whether the jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent — whether the amendment of one count on the indictment during the trial caused unfair prejudice to the applicant
CRIME — appeals — appeal against conviction — admissibility of phone recordings between the applicant and the complainant — where the phone recordings were not objected to by counsel at the trial — where the trial judge was not asked to exclude the phone recordings — where an anti-tendency direction was given by the trial judge
CRIME — appeals — appeal against conviction — whether a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address
CRIME — appeals — appeal against conviction — offences of aggravated sexual assault — where the applicant was convicted on the principal counts — whether the trial judge erred by leaving to the jury statutory alternative verdicts
CRIME — appeals — appeal against sentence — manifest excess — where the sentence imposed was not unreasonable, plainly unjust or outside the range of sentences available to the sentencing judge — where the applicant was self-represented during the appeal hearing — appeal brought out of time — extension granted — leave refused on two grounds — leave granted on five grounds — appeals against conviction and sentence dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 61J, 80B
Criminal Procedure Act 1986 (NSW) s 20
Evidence Act 1995 (NSW) s 137
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases Cited: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Davis v R [2024] NSWCCA 120
FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317
House v The King (1936) 55 CLR 499; [1936] HCA 40
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Pureau (1990) 19 NSWLR 372
R v White [2025] NSWCCA 111
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208
The King v ZT [2025] HCA 9; (2025) 99 ALJR 676
The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Zurshig v R [2021] NSWCCA 309
Category: Principal judgment
Parties: Shwethanshu Manudhane (Applicant) (Self-represented)
Rex (Respondent)
Representation: Counsel:
F Sullivan (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/00226240; 2020/00287881
Publication restriction: The publication of the identity of the complainant or any other matter that could identify the complainant is prohibited pursuant to s 578A of the Crimes Act 1900 (NSW)
[This headnote is not to be read as part of the judgment]
The applicant, Shwethanshu Manudhane, stood trial in the District Court at Sydney in July 2022 on an indictment containing 12 counts. The offences charged were intimidation, assaults, choking and sexual assaults. They were alleged to have occurred against the same complainant (“DRC”) in the context of her attempting to leave a relationship with the applicant. On 21 October 2022 Mr Manudhane was sentenced by her Honour Judge Traill to an aggregate term of 13 years imprisonment, with a non-parole period of 7 years and 2 months, commencing on 4 October 2020.
Mr Manudhane, who was self-represented at the appeal hearing, sought leave to appeal against his convictions and sentence. The grounds of appeal were in summary as follows.
In relation to the conviction appeal, the Court held (Sweeney J, Harrison CJ at CL and Hamill J agreeing) granting leave in part and dismissing the appeal.
As to Ground 1A:
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 applied.
As to Ground 1B:
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; Davis v R [2024] NSWCCA 120; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 applied.
As to Ground 1C:
As to Ground 2:
FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317 cited.
As to Ground 3:
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334; Zurshig v R [2021] NSWCCA 309 cited.
As to Ground 4:
James v The Queen (2014) 253 CLR 475; [2014] HCA 6; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1; Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208; R v Pureau (1990) 19 NSWLR 372 cited.
In relation to the sentence appeal, the Court held (Sweeney J, Harrison CJ at CL and Hamill J agreeing) granting leave to appeal and dismissing the appeal.
As to Ground 5:
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 applied.
House v The King (1936) 55 CLR 499; [1936] HCA 40; R v White [2025] NSWCCA 111 cited.
HARRISON CJ at CL: I have had the benefit of reading in draft Sweeney J’s thorough analysis of the trial proceedings in the District Court, including the evidence and the arguments in that Court, as well as the detailed submissions provided by both parties in this Court. In that last respect I note that Mr Manudhane appeared unrepresented before us but relied upon extremely extensive written submissions in support of his several grounds of appeal against his conviction and his appeal against the severity of his sentence. In forming my view about the outcome of this appeal, I have had regard to all of these matters.
Without limiting or qualifying the foregoing, I should indicate that I have reviewed the transcript and the other evidence at Mr Manudhane’s trial before her Honour Traill DCJ, at which he was legally represented. With respect to Mr Manudhane’s contention that the jury’s guilty verdicts were unreasonable or cannot be supported by the evidence, it is my view that his contentions are wholly misconceived. This is for the following reasons.
It is rare in my experience that complainants in sexual assault cases, or indeed in any criminal proceedings in which serious allegations concerning traumatic and stressful events have to be remembered, will not have provided earlier versions of what occurred that may differ in some respects from their evidence ultimately given in court. These versions may have been recorded by investigating police or given in conversations with individuals who later become witnesses at the trial. So much is consistent with human frailty and the natural variability of memory, as well as the understandably imperfect ability accurately to recall such matters.
Equally understandable, however, is that someone in the position of Mr Manudhane should attempt where possible to exploit such differences or inconsistencies as he may be able to identify. This approach is adopted in aid of the submission that the complainant’s evidence is incredible or unreliable and that as a result, the guilty verdict or verdicts are unreasonable. A commonly related submission is that a combination of guilty and not guilty verdicts is necessarily questionable and that the perceived inconsistency between or among such verdicts thereby imperils the outcome of the trial. In many cases, that approach is enough to result in success on appeal. However, that result does not follow in this case.
When read as a whole and properly understood, DRC’s evidence paints a picture of an abusive and controlling relationship between her and Mr Manudhane, characterised by her numerous unsuccessful attempts to end it. In the experience of this Court, the actual or implied threat of violence that accompanies such attempts often prolongs, or gives the appearance of prolonging, what is in fact an already failed or failing relationship, which the impartial, objective and emotionally detached observer might think should have been easy to terminate. This kind of acquiescence or hesitancy then becomes a basis for submissions that attack the credit of a complainant who “inexplicably” stays long after she should have gone. By way of a simple example in the present case, DRC’s return to Mr Manudhane after taking refuge with her son in her car by the fire station, rather than cutting ties for good, was used by him to challenge her credit. In what may seem to the uninitiated to be counterintuitive, the well documented and easily understandable but sad fact is that abused women find it extremely difficult, and too often impossible, to extricate themselves from relationships with violent and controlling men.
“Ground 1: Unreasonable Verdict.
Ground 1A: The verdicts of guilty on counts 3 and 5 -12 are unreasonable, or cannot be supported, having regard to the evidence at trial.
Ground 1B: The verdicts of guilty on counts 3 and 5-12 are factually inconsistent with the verdicts of not guilty on counts 1, 2 and 4 such that the verdicts cannot stand together.
Ground 1C: Amendment of Indictment.
Ground 2: Admissibility of Evidence of 3x Phone Recordings.
Ground 3: Crown Prosecutor’s Closing Address caused a Miscarriage of Justice.
Ground 4: Statutory Alternative Verdicts.
Ground 5: Manifestly Excessive Sentence.”
DRC’s evidence can be summarised as follows.
DRC came from South Korea and became an Australian citizen in 2016. She had been married before and they were divorced in 2018. In 2019, she had a 5 year old son from that marriage.
DRC met Mr Manudhane in a course they were both studying at Macquarie University. She began a relationship with him towards the end of September 2019. The relationship ended on 2 August 2020.
On 3 August 2020, DRC went to the police. They recorded an interview with her which was played to the jury as part of her evidence-in-chief. In that interview, DRC said she did not feel safe staying at her house because Mr Manudhane threatened her that he would break in and do something terrible to her when she talked about breaking up. She said he threatened he would break the window or door to come in. When she opened the door, he beat her on the head, choked her, brought a kitchen knife from the kitchen and pointed it towards her, saying that he would chop her into pieces or kill her, or write his initials on her body if she talked about breaking up. She said he had done that twice, on 1 and 2 August 2020. She said he put his hand on her neck and started to choke her, and he pushed her and hit her head so she fell on the ground.
DRC said when Mr Manudhane choked her she did not lose consciousness but she felt shortness of breath. She said after that he hit her head so she fell on the floor and she started to cry. He dragged her by her hands into her room and closed the door. Then he went and got a knife from the kitchen, brought it to her and said he would chop her into pieces, that he would kill her and kill himself. She said that happened on the Sunday. She said when he hit her, and she fell to the ground. He used the palm of his hand and hit her on her head.
She said on Saturday, when they were sitting in her room talking about breakups, he said he had had enough of this conversation and went out to search for a knife. He brought a big knife and put it on her study desk. He said he would cut his fingers to show her blood, how much he loves her, or if she really wanted to break up he would write his initials on her skin on her chest.
Then he said, “After the fight, that’s the best time to have sex. That’s the best feeling.” She said, “Don’t touch me” but after all that had happened she could not focus on pushing him away further. She told him, “No, don’t do this.” She said on Saturday she said, “Don’t do anything to do with anything, touching my body or anything” but he did not listen.
She said she had a few photos of bruises from when he hit her previously. She said there had been a lot of threatening messages but she did not go back to read them. She described the messages over the last two days as “I’ll kill you if you say this again. I really mean it: I’m sick of your nonsense and I’m really angry; if you say this again, I really break your face; pick up your bloody fucking phone.”
“Like those people in the graveyard, if I kill you, I at least know where you are, and I can visit you every day. I’ll have some peace in mind, because I at least know where you are. I’m going to kill you and bury you here.”
Mr Manudhane called her names and said she was being useless, talking about breakups. They went to a nearby café where he kept talking to her that way. She said she wanted to go to the toilet and he said, “Go there and kill yourself and don’t come back.” When she came back he asked her why she did not kill herself. She said that she found things he said emotionally traumatising and the next day she told him “I don’t think I can do this anymore. I don’t deserve to hear these things”. He said he would punish himself. He said he had had an argument with his father and he poured the anger and aggression of his argument with his father onto her. When he said he would punish himself he began to hit himself on the legs with a ruler. She took the ruler from him and he started to hit himself with a slipper in the face. She grabbed that and then he found a belt and started to hit himself with it. Then he grabbed a kitchen knife he had in his kitchenette. He said he wanted to kill himself and gestured using the knife to cut his wrists, but he could not do it and he stopped himself.
DRC said in January 2020, Mr Manudhane went back to India to see his family. They talked on an app while he was away, but she continued to talk about breakups. She said on 15 January she blocked Mr Manudhane from all her social media. He began to send messages through a Korean messaging app. He said she could not break up, he would find her even if she went back to Korea: there would be ways to find her and “get the job done” and “make sure that you get revenged”.
DRC said Mr Manudhane came back from India on 4 February 2020 and threw an engagement ring towards her. He told her she had to wear it. She did not wear it. That evidence was relied on as evidence of context.
DRC’s evidence about the offence of intimidation, the subject of count 6, was that on 1 March 2020, they had had an argument and she was talking about breaking up. She said Mr Manudhane came to her home. He was drunk and he was on the phone talking with his mother. He said he was not going to break up. DRC said she heard Mr Manudhane’s mother say, “You guys are not compatible. Ask [DRC] to return the ring and you go home.” She said Mr Manudhane was holding a medium kitchen knife and threatening her that she was not doing the right thing and she was never going to be able to break up with him. He was holding the knife in his hand but not pointing it at her. At that point in her evidence, DRC demonstrated how Mr Manudhane was holding the knife by his side and also waved it from side to side horizontally, using the knife to threaten her. He said he was going to chop her into pieces and he would kill her if she talked about “breakup shit”. He said he would cut his finger to show her blood to show how much he loved her. She said he cut his fingers but there was no blood. She said Mr Manudhane’s mother was still on the phone listening to him being verbally aggressive towards her and her trying to break up. After she heard what Mr Manudhane’s mother said, she gave the ring back to him. That evidence was the subject of the offence in count 6 of intimidation, of which the jury found Mr Manudhane guilty.
DRC’s evidence about the offence of assault in count 7 was that on 10 March 2020, Mr Manudhane was at her home. She said she was feeling “verbally insulted” and told him to go home and leave her alone. He said he did not want to go. She said Mr Manudhane called her a “little bitch” and said:
“What do you know? What if I go out and cheat on you with other girls better than you? You are single mum with a son, what do you have? You’ve got nothing, you don’t know how to live your life. You already ruined your life, and I know what you need a lot better than you. You listen to me.”
She said when Mr Manudhane said those things she did not look at him and he grabbed her face and said, “When a person talks to you, you look at that person.” She punched him to his left chest near his shoulder. She said he hit her on her left arm just below the shoulder and grabbed her right hand and pushed her hand with his thumb very hard. There was a bruise where he grabbed her hand and a bruise on her arm where he hit her. She said it was very painful when he pressed his thumb into the back of her hand. He then left. DRC took photos of the bruises from where Mr Manudhane grabbed her and hit her. She identified the photos during her evidence and described a bruise on her hand and bruising on her right arm just below her shoulder. The photographs became an exhibit and show bruising on DRC’s hand and right arm below her shoulder.
DRC’s evidence about the offence of assault the subject of count 8 was as follows. In her statement she had said the event happened on 18 April 2020 but her evidence at trial was it was18 June, because they had finished final exams and it was school holidays and Mr Manudhane had told her to stay with him “24/7”. She said she was at Mr Manudhane’s place and woke up around 8AM. She wanted to go home and began to pack her belongings. Mr Manudhane told her to not go and that she should stay with him. As she opened the door, he grabbed her clothes from behind and pulled her. She fell backwards and landed on her shoulder and back. She got up and opened the door again. Mr Manudhane grabbed her and pulled her back again, more forcefully than the first time. She landed on her shoulder and back and head. Mr Manudhane also fell down because of the force he used. She cried because of the pain and because she felt helpless that she could not get out of his room.
DRC said the next day when she went home she told Mr Manudhane that she could not continue the relationship. She said Mr Manudhane and his friend Paul came to her place and they were in his car parked outside her unit. She saw Mr Manudhane’s car in the street from her window. She closed her curtains, made no noise and pretended she was not there. Her car was outside. Mr Manudhane kept calling her but she did not answer the phone or reply to his messages. He kept messaging her and calling her. She read the messages. They said she was not doing the correct thing; there was nothing she could do to break up; to not do stupid things; he wanted to talk to her; she should come out or he wanted to go in and talk to her. She also received a message from Paul Matthew, Mr Manudhane’s friend, whom she saw in Mr Manudhane’s car when she looked out the window. She said Mr Matthew’s message said Mr Manudhane wanted to talk to her and suggested she talk to him. She replied to Mr Matthew’s message and said she would talk about breakups but not about anything else. She eventually told Mr Manudhane to come in, because she knew he was going to stay there for hours. Mr Matthew remained in the car.
DRC said when Mr Manudhane came in he said “you will never be able to break up”, that he would marry her and asked where her engagement ring was.
DRC recorded three conversations with Mr Manudhane on 19 June 2020. The recordings became exhibits and were played to the jury. The admissibility of those recorded conversations is the subject of Ground 2. The Crown submitted, pursuant to The King v ZT [2025] HCA 9; (2025) 99 ALJR 676, that the Court should listen to specified parts of the first two conversations Exhibits B and C. Mr Manudhane objected to the Court listening to the audio recordings because they were only relied on in the trial as evidence of context and would be prejudicial to him.
As the evidence was before the jury I listened to the specified portions of the recordings in Exhibits B and C.
“[75] [DRC] stated that she had been assaulted by her current partner who she had been dating for 11 months. [DRC] gave us a background to their relationship when stating that he had used a knife in a manner that had concerned her approximately 5 or 6 times during their relationship. She had previously discussed ending their relationship, with him.
[80] The events of 02/08/2020 were described by [DRC]. She stated that her partner at the time, attended her home and asked to be let in. She stated that she initially resisted. [DRC] said that her partner at the time threw his phone on the floor and shattered the screen. He said (as quoted by DRC) ‘I’ll break your windows’ if she didn’t let him in. She then opened the door.
[85] As soon as he walked in, he grabbed her neck with both hands and compressed her neck whilst she walked backwards and he walked forwards towards her. This lasted approximately 10 seconds by [DRC’S] estimation. [DRC] said that he hit the left side of her head with the palm of his right hand. She reported that she fell to the wooden floor on her right side. [DRC] stated that she cried. [DRC] said that her partner grabbed her left arm and pulled her across the floor to her bedroom. They both sat on the floor. He got a knife. [DRC] described this as the small knife she uses at home to cut fruit with. He pointed it at her and [DRC] reported that he said he would chop her into pieces. He said, ‘I’ll kill you first, then myself.’ After some time he put the knife to the side. They discussed ending the relationship. He said ‘I love you the most, why are you doing this to the person you love the most’. [DRC] stated that he
[95] told her that he had killed three people in the past. He would not let her leave the room. [DRC] said she kicked his genital area with her knee, grabbed her phone and purse and tried to leave but he pulled her back into the room. He hit her head with his palm multiple times. [DRC] said that she screamed a lot. He covered her mouth with his hand. She stated that he then wanted to have sex with her. She reported saying ‘no’ multiple times and told him that she did not want him
[100] to touch her. She said that she pushed his face away. [DRC] stated that ‘he gave me a hickey on my throat and he made me give him one’. She described this as being done in an ‘ownership’ fashion. She said that he overpowered her and had sex with her. She said he sucked her nipples, put his penis into her vagina, ejaculated on her stomach and then he wiped the ejaculate off.
[105] [DRC] also described another incident of being assaulted by her partner at the time, on 01/08/2020. She stated that between approximately 16:00 and 17:00 he threatened her with a knife after she discussed ending the relationship. She stated that he threatened her with a knife from her kitchen which was larger than the one he used on 02/08/2020. He threatened to carve his initials on her chest. He told her to close her eyes as he touched her skin with a knife tip. No incision was
[110] made. He told her he had carved his initials onto his ex-girlfriend’s chest in the past. [DRC] stated that he said ‘You’re a fucking bitch. You’re a whore. You’re not worth living. You’re stupid. You’re worthless’. She said ‘no’ many times to sex on 01/08/2020 but she said that he overpowered her and had sex with her. [DRC] had difficulty recalling the exact sequence of events on 01/08/20, after recalling the events of 02/08/20. DRC had difficulty distinguishing the non-consensual sex of 01/08/20 from previous occasions of non-consensual sex with him. She clearly recalled the use of the knife on 1/08/20, as she stated that this was an escalation in threatening behaviour in the relationship.”
On examination, Dr Gundevia observed four vertical bruises on DRC’s neck. She said bruises are caused by blunt force trauma and skin bruising has been noted to occur by various other mechanisms, including non-fatal strangulation. She said the two central parallel bruises may have been caused by compression to the neck or by suction force. She said bruises cannot be aged with certainty. They can take up to a day or so to appear and can be more difficult to identify on non-Caucasian skin.
The observed bruises on DRC’s neck, and the doctor’s opinion, provide some support for DRC’s evidence that she was choked by Mr Manudhane.
Dr Gundevia noticed a small patch of light pink skin on the left side of DRC’s hairline, which she said could have been caused by being hit on the head or falling, and may have been a bruise. This observed injury provided some support for DRC’s evidence that she was hit on the head by Mr Manudhane and fell to the floor.
Dr Gundevia observed petechiae, being pinpoint red spots, dotted in a linear fashion at DRC’s underarm and on her chest. She said they were most likely caused by pressure from grabbing.
Dr Gundevia observed two vertical parallel scratches between DRC’s breasts, affecting only the upper layers of skin. She said scratches are caused by sharp or irregular surfaced objects scraping off the surface layers of skin. She said the area between the breasts is a relatively protected area and it is unusual to find incidental scratches there. The surrounding skin looked healthy. The scratches and location provide some support for DRC’s evidence that Mr Manudhane put the tip of a knife to her chest in that location.
A friend of DRC’s, whom I will refer to as “JS”, gave evidence that in March 2020 she went to DRC’s home for a barbeque and DRC told her Mr Manudhane gave her a ring like an engagement ring, which DRC showed her. In July 2020, she spoke to DRC about the relationship and DRC seemed “a bit sad” and did not want to talk much about it. DRC told her that Mr Manudhane always wanted to be around, “24/7”, and wanted to move in with her as well, which she did not want.
She said in August 2020, she received a call from Mr Manudhane who told her that DRC had “filed a case against him”.
Around October 2020, JS spoke with DRC on the phone and asked what happened. DRC told her that Mr Manudhane tried to hit her and she asked for help and was told to call the police because of the use of a weapon. She said she wanted to break up but Mr Manudhane became very aggressive and showed her a knife. He said he was going to kill her and kill himself as well, which traumatised and frightened her a lot.
In cross-examination, JS agreed that the statement she made on 29 December 2020 did not refer to a threat to kill. She said she remembered those words later. She denied she was jumping to conclusions.
Ground 1C challenges the amendment of the date of the offence charged in count 8 on the indictment during the trial, which Mr Manudhane asserts caused him irreparable unfair prejudice.
In the indictment as initially presented, the date particularised in count 8 was 18 April 2020. When DRC began to give evidence about the alleged conduct the subject of count 8, the Crown Prosecutor referred her to her statement which had particularised the event as having occurred on 18 April 2020. DRC immediately said it was June and gave her reason for identifying that date as it having been a time of holidays after exams had finished. She was not challenged in cross-examination about the change of date.
On 18 July 2022, before the Crown Prosecutor called his last witness, he sought to amend the date in count 8 from 18 April to 18 June 2020. Counsel for Mr Manudhane did not object and her Honour granted leave. Later on that day, the jury was advised of the amendment.
Section 20 of the Criminal Procedure Act 1986 (NSW) provides:
(1) An indictment may not be amended after it is presented, except by the prosecutor—
(a) with the leave of the court, or
(b) with the consent of the accused.
The applicant submitted that the amendment of count 8 required him to face a different case than the Crown had previously proposed. He also submitted that he lost the chance of an acquittal on count 8 as the jury had acquitted him on count 4 where DRC had also “messed up the dates”. Therefore, he submitted that the jury should have had a reasonable doubt about count 8 because of DRC giving different evidence about the dates.
In oral submissions, Mr Manudhane said there might have been other evidence which he could have called in his trial, and he had to face a completely new case because DRC changed the date during her evidence. He submitted the amendment to the indictment prejudiced his ability to present an effective defence and undermined the overall fairness of his trial. He submitted that the change in DRC’s evidence about the dates raised substantial doubts about her credibility and truthfulness.
Mr Manudhane did not identify the irreparable prejudice to him in his trial which he asserted, nor any evidence which he would have called but was prevented from so doing. This was not a situation where, for example, the accused had identified an alibi for the date originally pleaded in the indictment and the date of the offence was changed, thus defeating the alibi.
In his written submissions, Mr Manudhane referred briefly to incompetence of his counsel in failing to object to the amendment of the indictment but did not elaborate further. He has not demonstrated any such incompetence.
Mr Manudhane has not established that the amendment of the date in count 8, without objection from his counsel during the trial, caused him irreparable prejudice or an unfair trial or that any miscarriage of justice occurred as a result.
Ground 1C has not been established.
Mr Manudhane submitted that DRC’s evidence lacked credibility because of discrepancies and inadequacies in her evidence, so that it was not open to the jury to accept her evidence to prove his guilt of the offences charged beyond reasonable doubt, where the only evidence of the offences was from her.
He particularised many asserted inconsistencies and implausibilities in DRC’s evidence and other evidence. It is necessary to address those individual submissions.
Mr Manudhane submitted that inconsistencies in DRC’s evidence raised doubts about her credibility.
In respect of count 3, Mr Manudhane asserted that DRC’s evidence of that offence was inconsistent, illogical and contradictory, in that she said she responded to Mr Manudhane’s threats by leaving her home with her son out of fear, but later returned home where he was, because she did not want her son to sleep in the car. He asserted that her evidence that his threats to “throttle” her and chop her into pieces were verbal threats, not physical threats, and was contradictory because they are physical threats. He submitted it was implausible that DRC had time to search what “throttle” meant but not time to search for the location of a police station (her evidence being that she drove to the fire station, assuming the police station would be located nearby).
DRC’s evidence that Mr Manudhane verbally threatened to cause her physical harm was not contradictory. Her explanation of returning home out of concern for her child was capable of being accepted by the jury, as was her evidence that she assumed the police station would be located near the fire station, and that she searched for the meaning of the word “throttle”.
Mr Manudhane submitted that DRC having spent New Year’s Eve [2019] with him, watching the fireworks, raised issues about the truthfulness and consistency of her evidence. The overall effect of DRC’s evidence was that Mr Manudhane’s behaviour was controlling and coercive throughout the relationship and he insisted on DRC being in his company at all times. This evidence of her socialising with Mr Manudhane on New Year’s Eve does not raise a doubt about her evidence about his conduct the subject of the charges or otherwise.
Mr Manudhane submitted, in relation to the offence charged in count 7, that DRC’s evidence that he punched her on her upper left arm was contradicted by the photograph of bruising on her upper right arm which she took around the time of the assault.
If DRC’s gesturing to her left arm while giving evidence of having been hit by Mr Manudhane was intended to indicate she was hit on the left arm, rather than indicating the area of her upper arm which was hit, then I do not consider that it assists Mr Manudhane that the photograph showed bruises on her upper right arm. There is a contradiction, but there are also bruises which were photographed. Actual bodily harm was not an element of the assault charge in count 7, but a photograph of bruising is capable of supporting DRC’s evidence of the assault.
The test to determine whether verdicts are inconsistent is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (“MacKenzie”). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: MacKenzie at [367]. The appellate court must consider whether there is an explanation for the acquittals, not the convictions: Davis v R [2024] NSWCCA 120; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151. The fact that a jury returns mixed verdicts in a sexual assault prosecution does not of itself establish that the jury did not accept the complainant as a witness of truth or demonstrate inconsistency: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (“MFA”); R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (“Markuleski”).
The obligation to establish inconsistency of verdicts rests upon the person making that submission: MacKenzie at [368].
During the summing up, the trial judge directed the jury that it was open to them to accept some of what a witness said and reject other parts of a witness’s evidence, that they must separately consider each of the 12 counts on the indictment by reference to the evidence relating to the individual counts, so that they could deliver different verdicts on different counts if there was a logical reason for that outcome, and a direction in accordance with Markuleski in respect of the assessment of DRC’s evidence.
On the same day as the summing up and while the jury was deliberating they sent a note seeking clarification on the definition of consent for the sexual assault charges and recklessness in respect of the assault charges, about which they were directed without any complaint by counsel for Mr Manudhane in the trial.
The three charges on which the jury returned verdicts of not guilty were the following.
Count 1 was an allegation of an assault on 20 August 2019, while DRC and Mr Manudhane were studying, before they had commenced a relationship, by hitting her on the head with a book in the lounge room, while her father was said to have been present in the bedroom of the unit.
Count 2 involved an allegation of intimidation on 25 October 2019 of Mr Manudhane threatening to cause harm to her former husband and his family.
Count 4 was an allegation that on 20 December 2019 Mr Manudhane used a knife to stab balloons which he had put in DRC’s home to celebrate her return from Korea.
Mr Manudhane submitted that the jury’s verdicts on those counts supported an argument that the jury looked with a “disfavour upon the credibility of the complainant”: Markuleski.
Mr Manudhane submitted that DRC said that the alleged assault the subject of count 1 did not stop her from continuing to see Mr Manudhane or from starting a relationship with him. In respect of count 2, Mr Manudhane submitted that the evidence was “inherently improbable and there was no corroborating evidence”. In respect of count 4, Mr Manudhane submitted that DRC changed her evidence about the date of the alleged offence and changed her evidence about his obtaining a knife from her kitchen. My reading of her evidence on both of those topics does not bear out those submissions. However, the jury acquitted Mr Manudhane on that count. He submitted that because of the acquittal in respect of count 4, the jury should have had a reasonable doubt about the credibility and reliability of DRC’s evidence in respect of the other knife related charges. He submitted that if the jury acquitted him in respect of count 4 because DRC mixed up the dates they should have acquitted him in respect of count 8, about which her evidence changed as to the date of the alleged offence.
He submitted that the jury acquitted him in respect of count 1, where allegedly DRC’s father was present, and they should therefore have acquitted him in respect of count 6 at which time it was alleged that Mr Manudhane’s mother was on the phone speaking to him.
Mr Manudhane submitted that the jury’s acquittals implied a “want of confidence in the complainant”: MFA, and that the events founded in the complainant’s evidence were “intertwined, temporarily and contextually” such that it is a logical affront to accept the inconsistency between the acquittals and the convictions.
Mr Manudhane’s hypothesis that the asserted presence of DRC’s father at the time of the acts charged in count 1, and the lack of evidence from him, may have explained the jury’s acquittal provides a possible explanation for it.
The Crown submitted that the jury may have not been satisfied beyond reasonable doubt that Mr Manudhane knew DRC was not consenting to being struck on the head while they were studying, or the jury considered Mr Manudhane’s act of hitting DRC on the head in that way was of a different degree of hostility or aggression or threat than that involved in the later charged assaults. Both are possible considerations which affected the jury’s verdict.
In respect of count 2, the Crown submitted that the jury may not have been satisfied beyond reasonable doubt that by his asserted threats to DRC’s ex-husband’s family he intended to cause her to fear physical or mental harm for her former husband and her family. That is an acceptable possible explanation. There was also evidence that DRC’s former husband had acted violently towards Mr Manudhane. That may have played a part in the jury’s verdict.
Ground 2 refers to three conversations between DRC and Mr Manudhane on 19 June 2020, which she recorded on her phone. The first conversation was over the telephone and the second and third were in person when Mr Manudhane went to DRC’s home. They were tendered into evidence during DRC’s evidence. There was no objection by trial counsel for Mr Manudhane. They were relied on by the Crown as context evidence.
Mr Manudhane now makes a number of complaints about the admission of the recordings into evidence in the trial and the use the Crown made of the recordings. It is clear from the transcripts of the recorded conversations that Mr Manudhane knew DRC was recording the conversations. He now complains of the following. He submitted there is a high possibility that the jury misused the recordings to convict him of the more serious counts on the indictment. He submitted that the jury reasoned that the attitude displayed by him to DRC in the recording extended to their entire relationship and thus tainted the jury’s verdicts on the matters charged in the indictment.
He submitted the Crown Prosecutor used the recordings to bolster DRC’s credibility. He submitted that although the Crown Prosecutor submitted the recordings as contextual evidence, they were used to corroborate the claims by DRC.
He complained that the Crown Prosecutor tendered the recordings without a tendency notice and the trial judge failed to refuse to admit the recordings pursuant to s 137 of the Evidence Act 1995 (NSW).
He complained that the recordings contained “highly charged emotional exchanges” between DRC and him, which potentially prejudiced the jury by causing emotional responses by the jury to his behaviour and contained vague allegations by DRC about Mr Manudhane’s conduct.
He complained that the evidence was presented selectively, to include only the emotional and confrontational moments.
He complained that the Crown Prosecutor in his closing address focused heavily on his tone of voice, rather than the content of the conversation, which was prejudicial and diverted the jury’s attention from the substance of the statements. He submitted that both he and DRC yelled in the recordings, which would have led the jury to draw the adverse inference that he was a person of bad character in general.
Mr Manudhane submitted that the way in which the evidence was collected, by DRC acting as an “agent of the state”, caused him significant prejudice and its admission affected the overall fairness of the trial and violated his right to silence.
He submitted the trial judge should have made a finding about the admissibility of the evidence.
Mr Manudhane complained that the trial judge did not direct the jury in respect of the confined use they could make of the context evidence at the time the recordings were tendered, although he accepted that the trial judge did so in her summing up, and also gave an anti-tendency direction in her summing up, as requested by Mr Manudhane’s counsel at trial.
“Context evidence is really what we call other matters that you have heard about that are not contained on the indictment, not charges on the indictment. Now I am going to give you directions about that and remind you of what those incidents are. Before you can convict the accused in respect of any of the charges on the indictment, you must be satisfied beyond reasonable doubt that those particular allegations occurred, the ones on the indictment. That is, the Crown must prove the particular acts to which each charge relates as alleged by the complainant. In addition to the evidence led by the Crown specifically on the counts on the indictment, the Crown also led evidence of other alleged misconduct by the accused towards her. I shall for the sake of convenience, just refer to them as other acts.
…
They are exhibits B, C and D. You have got the discs and the transcript of that. The Crown reminded you yesterday, he read out parts of those conversations, and said that that really just goes to background or context of their relationship.
…
It is important that I explain to you the relevance of that evidence. It was admitted solely for the purposes of placing [DRC’s] evidence towards the proof of the charges into what the Crown says is a realistic and intelligible context, and by context I mean the history of the conduct between the accused and the complainant as it took place. The Crown says without that evidence of those other acts, you may wonder, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or circumstances to link them in any way. If you had not heard about the evidence of those other acts, you may have thought the complainant’s evidence was less credible because it was less understandable. So the evidence is placed before you only to answer questions that might otherwise arise in your mind about the particular allegations and the charges on the indictment, so it is just to provide context to their relationship.
For example, the particular acts charged are placed in a wider context, that is a context of what the complainant alleges would be ongoing history of what the accused’s conduct towards her was, that that might appear to explain her evidence, put it in context, or what might explain things to you, like why she did not complain about certain things on a particular occasion. It is for that reason the law permits a complainant to give an account of other acts or a history between herself and the accused in addition to charges that are actually upon the indictment. So it is to avoid any artificiality or unreality in the presentation of the evidence from the complainant. The complainant’s account of those other acts by the accused allows her to more naturally explain her account of what allegedly took place.
However, I must give you this important warning. Firstly, you must not use that evidence that I have just set out, that context evidence, other acts, as establishing a tendency on the part of the accused to commit offences of the type alleged. You cannot act on the basis that the accused is likely to have committed the offences charged because the complainant made other allegations against him. This is not the reason the Crown placed the evidence for you. The evidence has a very limited purpose, as I have explained it to you, and it cannot be used for any other purpose or as evidence that particular allegations contained in the charges have been proved beyond reasonable doubt.
Secondly, you must not substitute the evidence of the other acts for the evidence of the specific charges in the indictment. The Crown is not charging a course of misconduct by the accused, but has charged particular allegations arising in what the complainant says was a course of misconduct. You are concerned with particular and precise occasions alleged on the indictment. So, for example, and I am just picking this out of the air, you might find that his conduct at the cemetery was threatening or intimidating, but you then cannot substitute that for one of the counts on the indictment, that you will have to look at the evidence relating to everything on the indictment, so that is important that you keep that I mind. You must not reason that just because the accused may have done something wrong to the complainant on some other occasion, he must have done so on the occasion alleged in the Indictment. You cannot punish the accused for other acts attributed to him by finding him guilty of the charges on the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.”
The recordings were not objected to on behalf of Mr Manudhane at the trial. The trial judge was not asked to exclude the recordings and did not err by failing to do so: FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [16] – [30]. The Crown did not rely on the recordings as showing a tendency of Mr Manudhane and the judge gave an anti-tendency direction. The terms of the Crown’s closing address about the recordings was not improper. Misuse of the recordings by the Crown or the jury has not been demonstrated.
The transcripts of the recordings and the parts of the recordings which the Court was asked to listen to are capable of providing a context to Mr Manudhane’s relationship with DRC which did not assist him. Nevertheless, he has not demonstrated that he lost a real chance of acquittal because of that evidence. When regard is had to the evidence in support of the counts on the indictment, which has been summarised above, Mr Manudhane has not demonstrated that the admission of the three recordings caused a significant miscarriage of justice in his trial.
Leave to rely on this ground of appeal should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
“There’s a tendency, and none of us are immune from this, when sitting on a jury to become somewhat used to the scenarios being laid out before you in the evidence.”
Mr Manudhane complained that the Crown Prosecutor offered personal opinions, rather than basing submissions on the evidence, that he speculated about the evidence, he used colloquial and inflammatory language, contributing to prejudice against him and inflaming the emotions of the jury. He submitted that when the Crown said “I suggest that….it’s quite frankly not the sort of thing you’d make up” that that was an indirect attempt to reverse the onus of proof by subtly suggesting to the jury “why would the complainant lie?”.
Mr Manudhane accepted that he requires leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of this ground.
I have considered each of the matters in Mr Manudhane’s submissions in respect of the Crown’s closing address to the jury, which would be improper if they were established: Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 and Zurshig v R [2021] NSWCCA 309, and indeed the whole of the closing address to the jury.
Mr Manudhane has not demonstrated any of his complaints about the Crown Prosecutor’s closing address. He has not demonstrated any miscarriage of justice arising from the Crown Prosecutor’s closing address. Mr Manudhane should be refused leave to appeal in respect of this ground pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
In this ground Mr Manudhane complains that the trial judge presenting statutory alternative verdicts in relation to counts 10 and 12, in the summing up to the jury after the close of the Crown case, caused him significant unfairness, where the statutory alternative charges were not included in the indictment or referred to by the Crown Prosecutor in his opening or closing address to the jury.
It is worth noting that Mr Manudhane was not convicted of either of the statutory alternatives; he was convicted of the principal counts. However, Mr Manudhane submitted as follows. The trial judge erred in directing the jury to consider statutory alternative charges to counts 10 and 12, despite the Crown not having given written notice of its intention to introduce them, not having included them in the indictment or outlined them during the opening or closing of the prosecution’s case. Mr Manudhane’s counsel at the trial objected to the trial judge’s decision to direct the jury about the statutory alternative charges, as being highly prejudicial and unfair to Mr Manudhane. By permitting the jury to consider verdicts that had not been properly disclosed or raised in the indictment, the trial judge caused unfair prejudice to Mr Manudhane, therefore potentially compromising the integrity of the guilty verdicts returned by the jury. Mr Manudhane submitted that because of the late introduction of the alternative verdicts by the trial judge, he lost an opportunity to cross examine DRC on the alternative counts and lost a real chance of being found not guilty on the principal charges. He submitted that the trial ran on an “all or nothing” basis. He submitted because of the late introduction of the alternative charges, the cross-examination of DRC “could have been a little different” and his counsel could not make submissions to the jury about the alternatives because the alternatives were only raised in the trial judge’s summing up.
Some aspects of the course of the trial should be noted. Before the Crown Prosecutor commenced his closing address to the jury, the trial judge asked him if he was going to mention the statutory alternatives to the counts under s 61J of the Crimes Act 1900 (NSW) (“Crimes Act”) being counts 10 and 12, which alleged circumstances of aggravation, in each case being that the accused threatened to inflict actual bodily harm on DRC by means of a knife. The Crown Prosecutor said he was contemplating doing that.
Mr Manudhane’s counsel objected, saying that he had had no notice and the Crown did not open on it. He said there should have been notice before cross-examination of DRC if statutory alternatives were to be relied on. The trial judge asked counsel how his cross-examination of DRC would have been different when the defence case was that the sexual intercourse was consensual and that knives were never used, and that counsel did cross-examine DRC about knives. Counsel told the judge “I’m struggling at the moment just because I haven’t thought of it, your Honour, because it wasn’t opened on.” Her Honour said she did not want to hold up the Crown Prosecutor’s closing address and deferred discussion of the issue.
“But to be fair to the Crown, I raised it for his opening and he said, yes, he was going to do that but he agreed not to because you wanted to address me.”
The Crown Prosecutor agreed with that statement and counsel for Mr Manudhane did not raise any disagreement that that had occurred.
I have been unable to find that earlier discussion in the trial transcript, although the transcript indicates after her Honour made her opening remarks to the jury “Extract Concluded” and then there was a separate transcript for the Crown Prosecutor’s opening to the jury. It may be that the exchange to which her Honour referred was not transcribed.
The trial judge directed the jury in appropriate terms about the statutory alternatives, and that they should not regard the availability of an alternative count as an invitation to compromise their verdict.
Section 80B of the Crimes Act provides for a jury to find an accused guilty of an alternative charge to an offence against s 61J of the Crimes Act. Whether the trial judge leaves an alternative verdict to the jury depends on fairness to the accused and ensuring a fair trial: James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [38]; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [138]; Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208 at [82], [90]; R v Pureau (1990) 19 NSWLR 372 at [375] – [377].
In Mr Manudhane’s trial, the judge did not raise the subject of alternative verdicts for the first time in her summing up without notice to any party, as some of those authorities considered. It is clear that counsel for Mr Manudhane in the trial was on notice of the issue and sought to defer consideration of it more than once. The trial judge listened to counsel’s objection and made her decision. Since counsel had cross-examined DRC to the effect that Mr Manudhane’s only use of the knife had been to cut a hamburger, the use of the knife in the way pleaded in counts 10 and 12, to threaten actual bodily harm to DRC, was an issue in the trial.
Mr Manudhane has not identified how the cross-examination of DRC would have been different had the issue of alternative counts been settled earlier in the trial. Nor has he identified the prejudice he asserts he suffered by the statutory alternatives to counts 10 and 12 being left to the jury. Had the jury convicted him of either alternative count there may have been an issue raised about the jury having compromised their verdict.
I am not persuaded that Mr Manudhane suffered any unfairness or prejudice from the trial judge leaving the alternative counts to the jury.
Mr Manudhane has not made out Ground 4.
In Ground 5, Mr Manudhane asserts that the aggregate sentence imposed upon him is manifestly excessive.
The aggregate sentence imposed was 13 years imprisonment, commencing on 4 October 2020 and expiring on 3 October 2033, with a non-parole period of 7 years and 2 months, which will expire on 3 December 2027. The indicative sentences were as follows:
For count 3, an offence of intimidation, with a maximum penalty of 5 years imprisonment, 2 years imprisonment;
For count 5, an offence of assault, with a maximum penalty of 2 years imprisonment, 6 months imprisonment;
For count 6, an offence of intimidation with a maximum penalty of 5 years imprisonment, 2 years and 6 months imprisonment;
For count 7, an offence of assault with a maximum penalty of 2 years imprisonment, 6 months imprisonment;
For count 8, an offence of assault with a maximum penalty of 2 years imprisonment, 6 months imprisonment;
For count 9, an offence of intimidation with a maximum penalty of 2 years imprisonment, 6 months imprisonment;
For count 10, an offence of aggravated sexual intercourse without consent, with a maximum penalty of 20 years imprisonment and a standard non-parole period prescribed of 10 years, 10 years imprisonment with a non-parole period of 5 years and 6 months;
For count 11, an offence of choking, with a maximum penalty of 5 years imprisonment, 18 months imprisonment; and
For count 12, an offence of aggravated sexual intercourse without consent, with a maximum penalty of 20 years imprisonment and a standard non-parole period prescribed of 10 years, 10 years imprisonment with a non-parole period of 5 years and 6 months.
The applicable principles were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:
“Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.”
The salient features of her Honour’s Remarks on Sentence, relevant to the ground of appeal and submissions, are as follows. The sentence hearing took place on 23 September 2022. Mr Manudhane was sentenced on 21 October 2022.
Her Honour found facts consistent with the jury’s verdicts. It seems there is no complaint about those factual findings. Her Honour took into account that the offences occurred in the context of a relationship between Mr Manudhane and DRC and the evidence at trial showed a persistent and continuing course of conduct by him involving controlling and threatening behaviour, intimidation, physical violence and sexual abuse.
In respect of the two offences of aggravated sexual intercourse, which it was common ground were the most serious offences for sentence, and which had the highest sentences indicated, her Honour assessed each as falling in the mid-range of objective seriousness, consistent with submissions to that effect made by both the Crown Prosecutor and counsel for Mr Manudhane.
In respect of mitigating factors submitted on behalf of Mr Manudhane her Honour accepted a submission that the offences did not involve planning. In respect of Mr Manudhane’s good character, which is the subject of his submissions, her Honour stated the following:
“[Counsel] also submitted in mitigation that the offender does not have a record of previous convictions… and the offender was a person of good character… It was submitted that both these heads of mitigation are established on the evidence. [Counsel] referred the Court to the character testimonials, Exhibit 1, and noted although they were written in 2020 they speak very highly of the offender in the knowledge of the allegations as they then were.
The Crown, in written submissions, submitted that the offender’s prior good character is of no real consequence in view of the gravity of his conduct over an extended period of time, involving multiple offences. The written submissions on the offender’s behalf acknowledged that good character will have diminished weight.
Having considered these submissions, I accept that whilst the offender was previously of good character, the offences for which he has been found guilty are extremely serious, committed over an extended period of time and as such I will give this mitigating factor a more limited weight.”
“Given the fact the offender does not accept his behaviour, I do not accept his risk of re-offending is low. I am guarded as to his risk of re-offending and prospects of rehabilitation.”
Her Honour took into account subjective matters, including that at the time of sentence Mr Manudhane was 26 years of age and was 24 at the time of the offences, that he was born and raised in India and moved to Australia to study audiology, and had no prior criminal history. Her Honour took into account Mr Manudhane’s experience of custody which involved racial vilification, violence and threats of violence, COVID lock-ins and isolation from family and friends.
Her Honour summarised the contents of six character references from Mr Manudhane’s mother and from friends of his or his family and stated:
“Whilst these references were written in 2020, prior to the offender’s conviction for these matters, [counsel] on behalf of the offender relies upon these references as an indication of the offender’s good character.
The Crown submitted that prior good character is of no real consequence in light of the gravity of the offender’s conduct over an extended period of time, involving multiple events.
The character references indicate that the offender is held in high regard by those who know him. However, as was submitted by the Crown, the offender’s conduct involved multiple offences over an extended period of time and as such the weight given to his good character is limited to a certain extent.”
“The offender has a Bachelor of Audiology and Speech Language Pathology from an Indian university. The offender was undertaking a Master’s degree in clinical audiology at Macquarie University after relocating to Sydney in January 2019. The offender was financially supported by his family whilst studying and did not undertake any employment. At the time the offender was bail refused he was nearing the completion of his Masters, being one month short of the completion date.”
There was no reference in the summary of that report to Mr Manudhane’s community contributions. However, there was no reference to such in Mr Sheehan’s report and there was no other evidence of such tendered in the sentence proceedings.
Her Honour took into account the Victim Impact Statement from DRC.
Her Honour made a finding of special circumstances, taking into account Mr Manudhane’s onerous conditions in custody, his youth, and that this was his first time in custody. The non-parole period fixed was 55% of the aggregate sentence.
A complaint that the sentencing judge gave too little weight to a factor is not a basis for establishing error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40: R v White [2025] NSWCCA 111.
Judge Traill could not take into account Mr Manudhane’s contributions to the community as an audiologist when there was no evidence of it was placed before her.
Mr Manudhane’s submission that her Honour overlooked his character references because they were written in 2020 does not accurately reflect her Honour’s Remarks on Sentence. Her Honour’s remarks demonstrate that she did take into account Mr Manudhane’s character references and his prior good character and lack of criminal convictions. No error is demonstrated in the way her Honour balanced those factors and his numerous offences over an 11 month period.
Mr Manudhane did not make any other submissions in support of his assertion that his sentence was unjust or disproportionate. Having regard to the number of offences for which he was sentenced, the circumstances of each, the maximum penalties prescribed for each offence, that the sentence occurred after trial and Mr Manudhane’s subjective circumstances, I am not persuaded that the aggregate sentence imposed on him was unreasonable or plainly unjust or outside the range of sentences available to the sentencing judge.
Ground 5 has not been established.
**********
Manudhane
R [2025] NSWCCA 169
(2022) 274 CLR 651
(2008) 74 NSWLR 645
(1936) 55 CLR 499
(2014) 253 CLR 475
(2006) 67 NSWLR 659
(1994) 181 CLR 487
(1996) 190 CLR 348
(2002) 213 CLR 606
(2017) 96 NSWLR 155
(2020) 268 CLR 123
(2001) 52 NSWLR 82
(1990) 19 NSWLR 372
(2001) 206 CLR 267
(2025) 99 ALJR 676
(2009) 236 CLR 397
(2009) 74 NSWLR 299
Mr Manudhane’s attempt in this case to demonstrate that the verdicts were unreasonable, and/or that any of them were inconsistent, either because DRC’s account of her ordeal could not be believed or that any guilty verdicts could not stand with simultaneous not guilty verdicts, fails to understand the oft-cited instruction to juries to use their common sense and life experiences in order to assess the whole of the evidence of witnesses, including what they have said and the way that they have said it. In the same vein, juries are reminded that they do not have to believe everything that a witness has said before they can believe anything that the witness has said. Juries are entitled, consistently with their life experience, to accept some parts of what a witness has said while at the same time completely disbelieving others. The credit or reliability of a woman who remains in a relationship she expresses a desire to leave is not to be doubted for that reason.
Mr Manudhane’s submissions ignore these truths, as Sweeney J’s analysis painstakingly reveals. His submission, that DRC’s evidence lacked credibility because of so-called discrepancies and inadequacies in her evidence, and that it was not open to the jury to accept her evidence to prove his guilt beyond reasonable doubt, is pedantic and plainly wrong. Mr Manudhane’s asserted inconsistencies and implausibilities in DRC’s evidence, or in the evidence generally, are not such as to cause me to have a reasonable doubt about his guilt. They do not give rise to the existence of a doubt that the jury must have had.
With respect to Mr Manudhane’s appeal against the severity of his sentence, it is sufficient for present purposes merely to observe that he was, among several other offences, convicted on counts 10 and 12 of two serious sexual assaults involving threats of violence with a knife. Even if there were some scope for concluding that Mr Manudhane’s previous good character and strong subjective case might have been given more emphasis, I do not consider that the aggregate sentence imposed could be described as unreasonable or plainly unjust.
I agree with the orders proposed by Sweeney J for the reasons she has given.
HAMILL J: I have read the draft judgment of Sweeney J and am grateful for her Honour’s thorough review of the evidence and arguments. I agree with Sweeney J that this appeal should be dismissed. I also agree with her Honour’s reasons for that conclusion. As to the complaint that the verdicts of guilty were unreasonable, I have considered the whole of the evidence (including those parts of the recordings in Exhibits B and C identified by the respondent) and agree that it was open to the jury, in the sense explained by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, to be satisfied of Mr Manudhane’s guilt. The complainant’s evidence received some support in the medical evidence, in things she said to other people, and in the recordings (Ex B and C) which suggested a coercive and volatile relationship. Insofar as one can tell from the transcript, DRC’s evidence was compelling. By way of example, parts of her evidence – such as the applicant hitting himself with a slipper and the complainant striking him at times – were unlikely to be fabricated, particularly if the complainant was attempting to inculpate Mr Manudhane falsely. My assessment is that the prosecution presented a very strong case at trial. As to the analysis of the applicant’s specific arguments under ground 1A, I agree with the analysis undertaken by Sweeney J at [122]-[162]. Similarly, I agree with what Sweeney J has written at [163]-[181] about the submissions under ground 1B that the acquittals on counts 1, 2 and 4 were inconsistent with the findings of guilt on the remaining charges. I also agree, for the reasons provided by Sweeney J, that grounds 1C, 4 and 5 must be rejected, and that leave to argue grounds 2 and 3 should be refused.
SWEENEY J: The applicant, Shwethanshu Manudhane, stood trial in July 2022 before her Honour Judge Traill and a jury, in the District Court in Sydney, on an indictment containing 12 counts.
All of the offences charged were alleged to have occurred against the same complainant (“DRC”) who was formerly in a relationship with Mr Manudhane. The Crown case was that the offences, or most of them, occurred in the context of DRC attempting to end the relationship and Mr Manudhane being unwilling to accept that.
On 21 July 2022 the jury returned verdicts in respect of all counts. There were three verdicts of not guilty, for counts 1, 2, and 4, and nine verdicts of guilty, for counts 3 and 5 – 12.
On 21 October 2022 Mr Manudhane was sentenced to an aggregate term of 13 years imprisonment, with a non-parole period of 7 years and 2 months, commencing on 4 October 2020. The non-parole period will expire on 3 December 2027. The sentence will expire on 3 October 2033.
Mr Manudhane represented himself in the appeal, although he was represented by counsel during his trial and sentence proceedings.
Mr Manudhane seeks leave to appeal against his conviction and sentence on the following grounds:
She said on the Sunday he was trying to come into her house but she did not want to open the door. He told her that he broke his [phone] screen so she thought he would break the window. She did not want that to happen so she thought she would open the door and talk to him. She said the “knife thing” happened on Saturday and she did not think he would do it again on Sunday.
She said she did not feel safe to go home. She said Mr Manudhane comes to her place three times a day without letting her know. He said he wants to spy on her. She said he was just too controlling.
She said even at his place he took a kitchen knife and did a similar thing to her. He did not want to finish the relationship. He would say “I’ll kill you”; “I want to throttle you”; “I want to chop you into pieces”; “break your face.”
She described both of the knives used by Mr Manudhane and said they were then in her kitchen.
She said for about two or three hours Mr Manudhane had continually verbally abused her, saying that he would kill her and called her names such as “useless piece of shit”, “bitch” and “whore”.
DRC said she made recordings. Mr Manudhane knew she was recording but he did not stop himself from talking like that and then he made sure she deleted them.
She said on the Sunday, Mr Manudhane told her she would be the fourth person he would kill. She was against the window. She has a black belt in martial arts and she thought of kicking his genitals to get out of the room. She kicked him, grabbed her bag and phone and tried to get out of the room, but even in pain he managed to grab her and pull her back and beat her on the head several times. She said she felt an immediate threat that she was going to die so she kicked him once so she could get out of the room but Mr Manudhane grabbed her before she could do so.
DRC’s evidence about the event the subject of count 1, of which Mr Manudhane was acquitted, was that in August 2019, Mr Manudhane came to her unit to study. Her father was staying with her and was in his room. Mr Manudhane told her if she could not memorise things he was explaining to her he would hit her with her notebook on her head. He then hit her hard on the top of her head a few times with her notebook, and she cried and told him to go home. DRC and Mr Manudhane were not in a relationship at that time.
DRC said the relationship began when they went away for a weekend on 20 September 2019. She said that she and Mr Manudhane had a disagreement about her having treatment for a medical condition and he was verbally abusive and aggressive. That was around the end of September 2019.
She said that on one occasion around October 2019, her ex-husband rang her and Mr Manudhane picked up the phone and answered the call. There was an argument between Mr Manudhane and DRC’s ex-husband. After that Mr Manudhane told her to install an app on her phone to record all calls with her ex-husband. She did so and she said Mr Manudhane listened to all the conversations she had with her ex-husband.
In October 2019, DRC was in Mr Manudhane’s room. He had an eyelash in his eye, which he could not remove. She advised him how to treat it and he said “Don’t talk or I’ll break your face.” She said that was very unexpected. He had his fist up and close to her face.
Evidence of those events was relied on as context evidence.
DRC said her ex-husband punched Mr Manudhane in October 2019 and Mr Manudhane had an Apprehended Violence Order against hm.
In respect of count 2, of which Mr Manudhane was acquitted, DRC gave evidence that on 25 October 2019, he was still talking about her ex-husband. He asked DRC to give him all the details about her ex-husband’s family in India. DRC said Mr Manudhane said he had political contacts and his family was very influential in India and if she gave him those details he could locate them and pay someone to go there and harm them or kill them. That caused her fear.
DRC said she took her son to Korea and she and her parents discussed that they would look after her son in Korea while she finished the second year of her degree.
She said from October 2019 she began to tell Mr Manudhane that she wanted to break up.
In November 2019, she and Mr Manudhane sat for exams. She said after one exam Mr Manudhane said he did not do well, and she tried to make him feel at ease by saying the exams were difficult for everyone. He had a water bottle and said “I am going to throw this water bottle and break your face.” He looked hostile. She said Paul Matthew, Mr Manudhane’s friend, was close by listening to that. That was relied on as context evidence.
DRC said that on 3 December 2019, her father left to go back to Korea. She contacted Mr Manudhane by telephone and told him she wanted to break up with him. He said, “I’m coming to kill you and chop you into pieces and throttle you.” She had never heard the word “throttle” and Googled what it meant. She said Mr Manudhane had a key to her house and her son was sleeping and her father had already left. She picked up her son who was sleeping, put him in the back seat of the car so he could continue sleeping and drove to the fire station. She felt that was a safe place to hide from Mr Manudhane. She thought the police station would be somewhere near there, but it was just the fire station. It was less than five minutes’ drive from her home. She sat in her car. Her son was still sleeping. She said Mr Manudhane started to call her, saying that her car was not where it was supposed to be. She did not pick up the phone so he began to send text messages saying that her car was not at her place. He said he was not going to hurt her, he just wanted to talk. DRC did not want her son to sleep in the car so she went back to her flat. Mr Manudhane was there, in his car, waiting for her. She said she still talked about breakups and he said there was no chance he would break up with her. The threats by Mr Manudhane over the phone were the subject of count 3, an offence of intimidation, of which Mr Manudhane was found guilty by the jury.
DRC flew to Korea with her son on 11 December 2019 and returned to Australia by herself nine days later. She went back to her unit, which Mr Manudhane had decorated with balloons. There were chocolates and a bottle of Irish cream. He was not there when she arrived home. Mr Manudhane said he had decorated the house. She told him she wanted to break up. He told her that because her son was not there anymore, she had to stay with him all the time. She said she did not want to be with him all the time. Some time after she spoke about breaking up, Mr Manudhane came to her home and popped all the balloons with a kitchen knife. She said the way he did so was so aggressive that she was crying. She said the way he was stabbing the balloons was terrifying. That was the subject of count 4, an offence of intimidation, of which the jury found Mr Manudhane not guilty.
Mr Manudhane told DRC that she had to stay with him “24/7”. She said she wanted to stay at her place and did. She said every day if she did not go to Mr Manudhane’s place, he would come and pick her up, and most nights she stayed overnight with him. She said she tried to go home and he would stop her.
DRC said that on 23 December 2019, Mr Manudhane told her to come to his place. She told him she would not do so and that she was sleeping at home. He said, “You have no choice… I’m gonna take you to my place.” He went to her unit. She was in bed, trying to sleep, but not sleeping because Mr Manudhane had told her that he was going to come. He grabbed her legs while she was lying down and pulled her towards the door, telling her “Get up and let’s go.” She was on her stomach and being pulled by her ankles. He said, “There’s no other choice that you can make, that’s what you’re going to do, you’re going to come with me.” She said his voice was threatening in the way that if she said no, he would escalate to some more horrible level. She said she went to his place because she had no choice. That evidence was about the offence in count 5, of which the jury found Mr Manudhane guilty.
DRC said that Mr Manudhane told her he had many ways to “do revenge on her” or hurt her, quickly, before any help arrives. He made her feel that she could not do anything if she reported him. That was relied on as context evidence. She told him that at the end of August 2020, when the course was over, she would end the relationship.
DRC gave evidence of a further occasion which was also relied on as context evidence. She said on 28 December 2019, she and Mr Manudhane went to Bronte Beach. They were walking in the cemetery. She said before they went there he showed some aggressiveness over the way he was parking the car. While walking, she talked about breaking up. He said he was going back without her to his car. After some time he returned, called her and asked where she was and joined her in the cemetery. He said:
DRC said that while the Exhibit C conversation between her and Mr Manudhane was being recorded, Mr Matthew came into her house to use the bathroom.
DRC said after the three conversations were recorded in her flat she packed her stuff and went to Mr Manudhane’s place; she had no choice. She said then they went to a jewellery shop because Mr Manudhane wanted to have her ring resized but the shop was closed so they went back to his place. The evidence of 19 June 2020 was relied on as context evidence.
DRC’s evidence about the conduct the subject of counts 9 and 10 on 1 August 2020 was as follows. She said that between 19 June and 1 August each night she had to go to Mr Manudhane’s place to stay with him. If she did not go to his place he would come and pick her up.
DRC said that on Saturday 1 August 2020, she called Mr Manudhane and said she could not continue to stay in the relationship; she wanted to break up. He said he would come and they would talk about it. He arrived at her place around 3PM or 4PM. He said there was no way they could break up. When Mr Manudhane arrived, she was studying in her bedroom. They each sat on a chair at her desk. He went to the kitchen and brought the biggest knife she had from the kitchen drawer. It was about 60cm long with a black handle (DRC said on 3 August after she was interviewed by the police she went with police to her home and showed them the knife, as well as clothing she had been wearing, and she was taken to Royal North Shore Hospital to be examined). DRC said Mr Manudhane pointed the knife in front of her face and then left the knife on the desk between them and said, “Each time you talk about breakup, I will slap you.” She said that she wanted to break up about four times and he slapped her four times with an open hand on her cheek. Then he said he would punish himself and he took her slipper off her foot and hit himself on the face with it. He started to bleed and he wiped the blood with his finger and put a dot of blood on her forehead and said, “A symbol of married woman in India.” When she tried to stand up and leave, he stopped her by blocking her with his arms and legs. She sat down again and Mr Manudhane said he would break up with her if she let him carve his initials into her chest. He was holding the knife while talking about this. The tip of the knife was on the skin on her chest. He said it was going to hurt so she should close her eyes. She thought of grabbing the knife but she would have to grab the blade, so she closed her eyes and said, “Do whatever you want.” Mr Manudhane did not do anything but said, “That’s how much you hate me.” DRC said she did not say anything after that, she went very numb; she was frozen and could not do anything. The knife was on the desk again. Mr Manudhane told her there were two choices she could make, one being his girlfriend, the other being a “friends with benefits” sort of relationship. She said she would do friends with benefits but would only see him on weekends. He said, “No, that’s not possible. Whenever I want to have sex with you, if it’s 10 times, then you have to come 10 times a day.” DRC said she thought being friends with benefits was better than being a girlfriend because she would only see Mr Manudhane on weekends and would not need to see him during the week.
She tried to stand up and he stood up as well. He tried to kiss her. He said “That’s enough of fighting, now you kiss me.” She tried to resist. He was coming closer to her and so she grabbed his face to stop him from doing so. She grabbed his chin. He put his hand around her wrist and grabbed her hands together and tried to kiss her, so she could not resist. Her hands were being held behind her back. Mr Manudhane kissed her, but her mouth was closed. She said she could not stop him from kissing her but she was not participating in it. Then Mr Manudhane said, “Having sex after a big fight is the best feeling.” He made her to go to her bed, by guiding her. The bed was right next to her desk. He removed her clothes. She said she was “still in that frozen mind that he would harm me physically with the knife at any time”.
The knife was on the desk, about 70cm away. Mr Manudhane then had penile-vaginal sexual intercourse with her and ejaculated inside her. She said she was watching him because she was still in fear that he was going to hurt her with a knife, so she could not do anything. She said her body was not moving. After the sexual intercourse finished, she said “I want to be alone”. Mr Manudhane left. That evidence was the basis for the intimidation charge in count 9, and the offence in count 10 of sexual intercourse without consent in circumstances of aggravation, that immediately before the sexual intercourse Mr Manudhane had threatened to inflict actual bodily harm on DRC by means of an offensive weapon.
DRC’s evidence about the charges in counts 11 and 12, of choking and aggravated sexual assault, was as follows.
DRC said because of the events the subject of counts 9 and 10, she could not sleep all night and in the early morning of 2 August 2020 she sent a text message to Mr Manudhane saying she would still break up with him. She was shown a screenshot of her phone. It began with a message from her to Mr Manudhane saying, “We are over.” The responses from Mr Manudhane were:
“I thought you’ll message me good night and love you but again this crap.”
“I’ll kill you if you say this again. I really mean it. The first thing I saw when I opened my eyes were this. I’m sick of your Jensen’s [sic] and I’m really angry.”
“If you say this again, I really break your face.”
“You stop annoying me.”
“I’m really pissed at you.”
“I’m not happy with you. You come home. I want to talk.”
DRC said after she received those messages, Mr Manudhane came to her place at around 2PM. She did not open the door. He told her to open the door and if she did not open the door he would break the window or break the front door, which was a glass sliding door. She said she did not open the door so while he was on the phone with her he threw his mobile phone on the ground. She heard that and Mr Manudhane said his mobile phone screen was broken. She said it was Sunday and she was aware of people living upstairs with a baby. She said she did not want him to break the window and make a big scene in the quiet place where she lived, so she opened the door. As soon as she opened the door, he put his hands on her neck and started to choke her. He choked her for about 10 seconds, using his two hands with his thumbs in the middle of her throat. She began to walk backwards because he was pushing her while choking her. She could not breathe from his hands around her throat. She walked backwards until she could not go further because of a kitchen bench. Mr Manudhane then hit her hard on her head with an open hand and she fell onto the floor, on to her hip. She began to cry and Mr Manudhane went to close the door which he had left open. He locked the door. Then he grabbed her left arm and dragged her into the bedroom, dragging her on the floor holding her hands.
When she was in the bedroom he went to the kitchen and obtained a small kitchen knife, about 20cm with a red handle, which she used to cut fruit. She said Mr Manudhane returned to the bedroom with the knife. She was on the floor crying. He pointed the knife towards her and said, “Now you talk about break ups. You learn that you can’t break up with me.” He was pointing the knife towards her face. He told her she did not need to study anymore, just stay with him. He said he would chop her into pieces and kill her, while he was holding the knife.
DRC was on the floor. She felt that she had no control of her body and there was nothing she could do to get out of the situation. She stood up and sat on one of the chairs at her desk and Mr Manudhane sat on the chair next to her. He was close to the door. She was near to the window. He said he could kill her with a knife. She stood up and he came and he came closer to her. The knife was on the floor. She thought he would choke her again. She used her right knee and kneed him in the groin. He said it was very painful and he fell on the floor. She grabbed her bag and phone and wanted to get out of her house. She managed to open her bedroom door and then Mr Manudhane grabbed her shoulder and pulled her back to the bed. He hit her several times on her head. She was screaming and crying. She closed her eyes. He put his hand on her mouth. He said he would make her feel good now and removed her clothes. She said, “No, don’t do it”. She said that about five or six times, while he was removing her clothes. He had penile-vaginal intercourse with her for five to ten minutes and ejaculated on her stomach. While he was having sexual intercourse, she was watching him and she was still. Then Mr Manudhane made a “hickey” mark on her neck and he told her to give him one and she did so.
After the sexual intercourse, Mr Manudhane went to the bathroom to wash his hands, came out and wiped her body with a tissue. She told him she would rather be someone he just had sex with, or a prostitute, than his girlfriend, because he was emotionally abusing her. She said he did not seem to listen to her but he was talking about that he needed to have his broken mobile phone screen fixed and she had to pay for it. He showed her that his phone screen was broken. He Googled and found a place at Burwood to have his phone fixed. DRC said she felt as if she was responsible for the broken phone screen and that she had to pay for it. She went to Burwood with him. She said she was sitting on a chair in the phone repair shop. She told Mr Manudhane that her head was aching and hurting and she wanted to go back to the car and stay there. So she did. He came to the car and asked if she was okay. She said her head was hurting. He went back to the phone shop. After he had his phone screen fixed, there was a shop a few blocks away which sold Chinese food that she really liked to eat so she said she wanted to go and eat. They ate on the way back to the car. Then Mr Manudhane took her back to her place. They arrived there around 7:00 or 7:30PM and he went home.
About half an hour or an hour later DRC called Mr Manudhane and said she could not continue to be threatened and assaulted that way. She said she cried a lot on the phone. Mr Manudhane said he was tired and wanted to sleep. The phone conversation ended.
DRC sent text messages to Mr Manudhane just after midnight, in the early hours of 3 August 2020, some of which said:
“I want peace in me.”
“Don’t make me hurt anymore.”
“You had no right to do what you did.”
“And you are good I know but your other side scared me away. I don’t want to go through that again and again.”
“You give me PTSD.”
DRC did not sleep all night and in the morning of 3 August 2020 she called Paul Matthew and asked him whether Indian guys use knives or other things to threaten girlfriends when they mentioned breakups,. He said no. She called the “helpline counselling service” on the phone. She said she thought it was a matter of her having to do some counselling about relationships. When the counsellor heard that Mr Manudhane was using knives she stopped her and told DRC to call the police.
DRC went to the police station at about 2PM that day. She was interviewed. She went to the hospital. The police took her back home. She showed the police where the knives were, where the assault happened and the clothes she was wearing. The police photographed the knives and her clothing. She was then taken to Royal North Shore Hospital and examined by a doctor to whom she gave a history.
In cross-examination DRC maintained that Mr Manudhane threw his phone and broke the screen. She said she kneed him to the groin twice during their relationship. She said she obtained a black belt in Taekwondo when she was 14, which was 20 years before the time she was giving evidence. She said she discontinued Taekwondo when she was 14. She said she kneed him so she could get away. She agreed she tried to help him not feel the pain by heating his back with balm right after she kneed him. She said when he had sex with her she was feeling threatened that she was going to be hurt or harmed, and she did not resist or object to any of the things Mr Manudhane told her to do.
She maintained her accounts of the incidents with Mr Manudhane which she had described in her evidence-in-chief.
She disagreed that in her bedroom on 1 August, Mr Manudhane offered her a hamburger to share and brought a knife into her room to cut it. She said the knife was not there for a hamburger; there was no food.
When asked if she told Mr Manudhane that she loved him, DRC said if she did not say that she would be verbally and physically abused.
DRC said that on 3 August 2020, she cleaned her apartment so that she did not have to remember the abusive and threatening things that happened there. Monday was rubbish collection day. She had put the tissue Mr Manudhane had used to wipe her body in the rubbish bin and it had been collected before the police came to her place.
She agreed that on New Year’s Eve [2019] she watched the fireworks with Mr Manudhane.
In re-examination, DRC agreed that the children’s Taekwondo belt she received was different from an adult’s.
Dr Zarin Gundevia was the doctor who examined DRC on 3 August 2020. During her evidence, Dr Gundevia read from her report the history given to her by DRC:
Paul Matthew gave evidence. He became aware in October 2019 that Mr Manudhane and DRC were in a relationship. Mr Manudhane told him it had begun about two to three months before.
He said he found it difficult to recall events more than two years before he was giving evidence. He said Mr Manudhane had told him that DRC wanted to break up but he did not want to give up on the relationship. That occurred multiple times. He said on 19 June 2020, Mr Manudhane picked him up in his car and instead of going to Mr Manudhane’s place they went to DRC’s unit because Mr Manudhane wanted someone to go and have a chat with her. Mr Matthew said he was not keen on getting into their relationship. Mr Manudhane told him that DRC was not picking up any of his calls. They went to DRC’s place but Mr Matthew did not go inside except to use the washroom. He was sitting in the car. He said when they arrived, Mr Manudhane tried calling and messaging DRC but she was not responding to him. Then he sent a message from Mr Matthew’s phone, to which she replied, saying that Mr Manudhane could come in. She said in a message to him that she would only talk to Mr Manudhane about breaking up and ending the relationship. Mr Matthew told both of them that he did not want to be in middle of their relationship. Mr Manudhane went inside and left Mr Matthew sitting in the car.
When he went into DRC’s unit to use the toilet, he saw nothing unusual, just Mr Manudhane and DRC standing in the bedroom. He could not remember the mood of the conversation. He went back to the car and waited for Mr Manudhane to come out.
He said on 3 August 2020 he had a phone conversation with DRC. She told him that Mr Manudhane had threatened her with a knife and asked if most “Indian guys” are the same. She told him she had been attending counselling sessions with a psychologist. She told him that Mr Manudhane told her he would carve her name on her chest and told him that Mr Manudhane threatened her with a knife, held it close to her chest and told her that he would chop her up if she ever spoke about breaking up.
In cross-examination, Mr Matthew agreed that in his statement made on 13 October 2020, he said that Mr Manudhane had told him that DRC said if he did not break up with her and leave her alone she was going to ruin his life.
Senior Constable Alec Preece gave evidence that he obtained an initial report from DRC on 3 August 2020. Then he went to her home. He said photographs were taken within DRC’s unit, clothing and two knives were seized for forensic analysis. He said DRC led him to one of the knives located in the bedroom but he could not recall where the other knife was located. She told him the knives were used by Mr Manudhane: the black knife on 1 August and the second knife, the smaller red handled knife, before the sexual assault on 2 August.
An expert certificate in respect of DNA analysis was tendered during Senior Constable Preece’s evidence, without objection. Parts of the report were adduced through him. Part of that evidence was that DNA testing was unsuccessful on the swabs from the two knives. He said from his experience, the reasons why DNA testing is unsuccessful could be because the person was wearing gloves, the items had been cleaned, or something to do with the surfaces of the items.
In cross-examination he said he did not speak to any of the occupants of DRC’s building. He did not inspect Mr Manudhane’s phone for damage. He did not attend the mobile phone repair shop in Burwood. He made enquiries about CCTV footage but there was none because it was usually only kept for three to four weeks. His enquiry was over a year after their attendance at the shop.
He agreed that Mr Manudhane had no criminal convictions or charges.
Mr Manudhane submitted that there were inconsistencies in DRC’s account of the events of 1 and 2 August. He submitted she had difficulty remembering the events and Dr Gundevia stated that she had difficulty recalling the exact sequence of events on 1 August. Mr Manudhane also submitted that DRC said he had thrown his phone on the ground outside her place when she heard that but did not see it and there was no corroborating evidence.
I note DRC’s evidence that she had been subject to many occasions of non-consensual sexual activity. Having read her evidence, she does not appear to have any difficulty remembering the events. That is not demonstrated in her evidence and she made no such concession. Her evidence appears consistent. The doctor did record that on 3 August DRC told her she had difficulty remembering the exact sequence of events. That does not raise any doubt about her evidence of the events of 1 or 2 August or more generally. DRC’s conclusion from hearing Mr Manudhane say he had broken his phone screen and a noise of the phone after he said he would throw his phone was not an unreasonable conclusion. It was a matter for the jury to assess that evidence.
Mr Manudhane submitted that DRC’s having a black belt in Taekwondo, enabling her to defend herself, raised significant questions about the plausibility of her claims.
I note that DRC’s consistent evidence was that she had obtained a blackbelt as a child of age 14 whereas she was in her early 30s at the time of the alleged offences. Again, this evidence was before the jury for them to assess. It does not raise a doubt about her allegations.
Mr Manudhane submitted that DRC gave differing accounts of her perception of his motivation for his relationship with her, that she had “1%” hope he loved her, and that he wanted to obtain permanent residence through his relationship with her. That matter does not raise a doubt about DRC’s evidence about Mr Manudhane’s conduct towards her.
Mr Manudhane submitted that DRC’s evidence about her lack of consent to sexual acts on 1 and 2 August was contradicted by her evidence that she gave him a “hickey” because he asked her to and “he may have asked me to touch [his penis] and I would have done that” but she did not recall doing so.
DRC also gave evidence that at that same time she felt threatened that she was going to be hurt by Mr Manudhane, so she did not resist what he told her to do. DRC’s admitting to doing an act towards Mr Manudhane, because of threats of harm to her by him, do not amount to consent and do not undermine her evidence that she did not consent to the charged acts the subject of counts 10 and 12.
Mr Manudhane submitted that DRC’s complaint to Dr Gundevia was inconsistent with her evidence, in that she omitted to tell Dr Gundevia that she was slapped across the face and fell on her hip.
Dr Gundevia gave evidence that in the history she took from DRC, DRC said that Mr Manudhane hit the left side of her head with the palm of his right hand and she fell to the wooden floor on her right side.
DRC having not told Dr Gundevia of being slapped on the face on 1 August was a matter for the jury to assess. It does not raise any doubt about her evidence of the events of that day. Nor does any perceived discrepancy between DRC saying she fell on her right side and she fell on her hip, that also being a matter which was available for the jury to consider.
Mr Manudhane submitted there was “medical doubt” about the marks on DRC’s neck, attributed in the Crown case to the choking the subject of count 11, because Dr Gundevia said the two central parallel bruises on DRC’s neck could have been caused by compression to the neck or by suction force.
That evidence was before the jury and it was open to them to accept that the bruises observed on DRC’s neck were caused by neck compression and were supportive of her account of having been choked by Mr Manudhane.
Mr Manudhane submitted that DRC’s accepting a pizza from him on the night of 1 August was inconsistent with her allegations of having been assaulted by him on that day. DRC’s evidence was that she did not want to go with Mr Manudhane to eat pizza but he brought a pizza to outside her home and told her to come out and take it, so she did. It is consistent with the effect of her evidence about the dynamics of their relationship and does not raise a doubt about her evidence about the charged conduct.
Mr Manudhane submitted that the following conduct was inconsistent with DRC’s allegations of the assaults on 2 August 2020:
Sending him a text message around midnight on 2 August: “I hope you are okay. I hope to see you when I am okay to see you.”
That she asked Paul Matthew on 3 August about whether Mr Manudhane’s behaviour with knives was usual for Indian men, when she had previously been married to an Indian man.
That she contacted a pregnancy counselling hotline rather than a domestic violence helpline. I note that DRC denied in her evidence that she contacted a pregnancy hotline, and there was no evidence that she did.
In respect of the text messages, I note DRC’s evidence that she had to say things to Mr Manudhane carefully, in a way that would not trigger his abusive or threatening behaviour. That message is consistent with that approach. She also sent messages in the same timeframe which included “don’t make me hurt anymore” and “you had no right to do what you did”, consistent with her account of Mr Manudhane’s conduct on 2 August. Her complaint to Paul Matthew on 3 August, in the form of the enquiry she made, supports her allegations.
Mr Manudhane submitted that there was an inconsistency between the evidence of Detective Preece that DRC led him to a knife located in her bedroom on the evening of 3 August and DRC’s statement in her Domestic Violence Evidence in Chief interview on 3 August that both knives used against her were now in the kitchen of her house. This minor inconsistency about the location of one of two knives seized from DRC’s home, which matched the descriptions she gave of the knives she said were used against her by Mr Manudhane, does not raise a doubt about her evidence.
Mr Manudhane submitted that DRC’s evidence that she kneed him in the groin on 2 August 2020 was contradicted by her evidence that she then heated his back with balm to help reduce his groin pain rather than continuing to attempt to escape from the room. That was a matter for the jury’s assessment. It does not raise a doubt about her evidence about the assaults on that day or more generally.
Mr Manudhane submitted that DRC’s evidence, that on 2 August he ejaculated on her stomach and wiped it with a tissue, was significantly cast in doubt by her “implausible” evidence that afterwards she cleaned her apartment so she did not have to remember what occurred, and disposed of the tissue in the rubbish, which the rubbish collection took away on the day. Further, he submitted that DRC’s evidence of cleaning her place was contradicted by Detective Preece’s evidence of seizing a knife from her bedroom. The latter may have been due to a mistaken memory by the detective. It is not of great significance. Nor does DRC having cleaned her apartment for her stated reason cast any doubt on her evidence about the offending conduct.
Mr Manudhane submitted that the lack of DNA on DRC’s body, specifically her stomach and breasts, adversely affected her account of his conduct in respect of those parts of her body. Given that DRC was examined by the doctor and swabs taken on the evening of 3 August, when the alleged assaults had happened on 1 and 2 August, there may be reasonable explanations for why there were no semen cells detected on those body parts at the time of the examination. It does not undermine or raise a doubt about DRC’s evidence.
Mr Manudhane said that DRC engaged in inconsistent behaviour on 2 August by going to the phone shop at Burwood to have his phone repaired, eating Chinese food at Burwood and “possibly holding hands” with him.
DRC’s evidence about holding hands was, in response to the question, “When you went to the phone shop, were you holding hands?” She said, “I don’t remember.” That does not amount to evidence that she was possibly holding hands with Mr Manudhane at Burwood. Her going to the phone shop at Burwood with Mr Manudhane was consistent with her evidence that he insisted on having his phone repaired then and with her description of his general insistence that she accompany him. Neither that, nor her eating Chinese food at Burwood, casts doubt on her evidence about Mr Manudhane’s conduct the subject of the charges.
Mr Manudhane submitted that Detective Preece gave “speculative” evidence that there may not be DNA on objects because a person who touched them was wearing gloves, or the items had been cleaned, or because of the surface of the items, when he was not an expert in such matters. I note there was no objection by Mr Manudhane’s counsel at trial to that evidence. There was no requirement for DRC’s evidence to be “corroborated” by DNA evidence. It was open to the jury to accept DRC’s evidence, as I have assessed it, without any support from evidence of Mr Manudhane’s DNA on any items in her home.
Mr Manudhane submitted that the police investigation was inadequate in that police did not speak to the occupants of the building in which DRC lived, in relation to the alleged argument on 2 August, or make a timely request for the CCTV at the Burwood phone repair shop.
Juries are routinely instructed to not speculate about matters which are not the subject of evidence. The jury had plenty of evidence from DRC to consider. My assessment of her evidence is that it was open to the jury to accept her evidence and that is not adversely affected by the lack of the evidence of which Mr Manudhane complained.
Mr Manudhane submitted that no swab was taken of the blood DRC said he put on her forehead on 1 August so there was a lack of “crucial physical evidence”, nor did the police examine his face for bruises on 3 August, which could have corroborated DRC’s account of his hitting himself in the face with a slipper on 1 August. As I have noted, DRC saw the doctor on the evening of 3 August. Again, the lack of such evidence does not raise a doubt about DRC’s evidence on those subjects.
Mr Manudhane placed emphasis on Paul Matthew’s evidence that he observed no violence by Mr Manudhane towards DRC in his presence over the approximate 10 months he saw them together. That evidence was before the jury and was available for them to assess together with DRC’s evidence of the various acts of violence perpetrated upon her by Mr Manudhane when they were alone.
Mr Manudhane relied on the evidence of his denial to JS that he had done anything wrong to DRC. This evidence was before the jury and was available for them to assess. It does not raise a doubt about DRC’s evidence.
Mr Manudhane submitted that DRC’s “extreme agitation and aggression” during her evidence, when her account was challenged, suggested attempts by her to deflect scrutiny or a lack of confidence in the truthfulness of her evidence. DRC’s manner in answering questions was observed by the jury and available for them to consider in their assessment of the evidence. Her manner may have suggested a truthful witness when affronted by her account being challenged. Nothing in the description of the conduct or a reading of the transcript of her evidence raises a doubt about the credibility and reliability of her evidence.
Mr Manudhane submitted that DRC sent him inconsistent intimate text messages during March, May and July 2020. I note her evidence that it was a traumatising relationship that she had to stay with, because of how Mr Manudhane behaved when she wanted to end it. Those messages, the details of which do not need to be repeated, do not raise a doubt about DRC’s evidence about Mr Manudhane’s conduct the subject of the charges or more generally.
Mr Manudhane emphasised that the only evidence in support of the charges was DRC’s. He submitted there was a lack of complaint by DRC of having been sexually assaulted to JS or Paul Matthew or in her text messages to Mr Manudhane.
DRC’s messages on August 2 and 3 including “you had no right to do what you did”, DRC’s going to the police on 3 August and her complaint to Dr Gundevia on the night of 3 August were complaints close in time to the events of 1 and 2 August. Her lack of complaint of sexual assault to JS or to Mr Matthew are explicable.
None of the matters so raised by Mr Manudhane, considered individually or together, raises a doubt about the quality of DRC’s evidence. On my own independent assessment of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt of each of the offences of which he was found guilty. Mr Manudhane has not demonstrated that the verdicts of guilty on counts 3 and 5 – 12 were unreasonable.
The Crown submitted that in respect of the conduct the subject of count 4, the jury may not have been satisfied beyond reasonable doubt that Mr Manudhane, in stabbing the balloons, intended to cause her fear of physical or mental harm, which was an element of the offence required to be proved. That is an acceptable possible explanation for the acquittal.
The alleged acts the subject of counts 1, 2 and 4 were differentiated in time from the counts on which the jury convicted Mr Manudhane. They occurred in the early period of DRC’s knowing Mr Manudhane and the early stages of her relationship with him. They were allegations of conduct different to that the subject of the counts on which Mr Manudhane was convicted. They were not so closely related, in time, or factually, that the jury could not, as they were directed, accept some of DRC’s evidence but not other parts. Indeed, the jury’s verdicts in respect of counts 1, 2 and 4 do not necessarily indicate that they did not accept DRC’s evidence; rather, they may not have been satisfied by that evidence that the Crown had proved to the requisite standard Mr Manudhane’s knowledge or intention, as an element of each offence.
I am not persuaded that the verdicts of acquittal and the verdicts of guilty are inconsistent such that the latter cannot stand.
Mr Manudhane has not made out Ground 1B.
Mr Manudhane complained about inflammatory language by the Crown Prosecutor in respect of the recordings during his closing address to the jury, and that he addressed the jury on the recorded conversations in “extreme detail”.
Mr Manudhane accepted that he requires leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise this ground of appeal because no objection was taken to the admission of the recordings in the trial.
Mr Manudhane submitted that the admission of the recordings led to a significant miscarriage of justice, as there was “outright danger” that the admission of the evidence led to him having lost a real chance of being found not guilty.
In his closing address to the jury the Crown Prosecutor made the following submissions about the recorded conversations:
“…I’m sure you will recall each three of these recordings were quite harrowing to listen to. If ever you wanted a clear insight into the behaviour of the accused, and the terms of his relationship with [DRC], these recordings gave you a perfect insight…”
“It’s indicative of the dynamics in this relationship…it was somewhat harrowing to listen to these because what was happening was this domination, this threatening, bullying, the controlling by the accused. That was evidenced not only in what he said but also in the tone of voice that he used throughout.”
The Crown Prosecutor also relied on the part of the recording in which Mr Manudhane said “I actually came here to apologise because whatever happened yesterday” and DRC said “Why did you pull me in like that for twice when I wanted to go home?” as providing some support for DRC’s allegation the subject of count 8 which she said occurred on the previous day, 18 June, when Mr Manudhane prevented her from leaving his apartment, pulling her back in twice.
Counsel for Mr Manudhane in the trial made no objection or complaint about any of the Crown’s closing address in those terms. Counsel addressed the jury about the recorded conversations and that they demonstrated that DRC had omitted from her evidence some conduct of hers against Mr Manudhane, which was not to her credit.
The trial judge directed the jury in the following way:
The subject was considered after both closing addresses had been completed. Mr Manudhane’s counsel said he still opposed the trial judge leaving the statutory alternatives to the jury because it was not opened on or raised before the closing addresses. The trial judge said to counsel: