CRIME – appeals – convictions for sexual intercourse without
consent in company based on joint criminal enterprise liability
–
agreement to commit a crime – allegations of non-consensual group sexual
Source
Original judgment source is linked above.
Catchwords
CRIME – appeals – convictions for sexual intercourse withoutconsent in company based on joint criminal enterprise liability–agreement to commit a crime – allegations of non-consensual group sexualintercourse between two complainants and threeaccused and another malefollowing consensual group sexual activity – trial judge’sdescription of the joint criminalenterprise as one to sexually assault, havesexual intercourse with or sexually touch “with or without” theconsent ofthe complainants – agreement to do so reckless as to whethercomplainants consenting – whether the actus reus the subjectof theagreement was sexual intercourse or sexual intercourse without consent –whether extended definitions of knowledge ofabsence of consent capable ofcoherent combination with joint criminal enterprise liability on facts of thiscase – relevantactus reus sexual intercourse without consent –
inadvertent recklessness not capable of coherent combination with joint criminal
enterprise liability – advertent recklessness capable of coherent
combination with joint criminal enterprise liability CRIME –
appeals – cross-admissibility of evidence of two different alleged joint
criminal enterprises arising on different
nights with different complainants
– trial judge refused separate trials regarding the different complainants
and different
nights on the basis that there was one joint criminal enterprise
– tendency and coincidence reasoning not pressed by prosecution
and not a
reason for permitting cross-admissibility – transaction evidence –
intermediate state of mind of the applicants
over the weekend to seek
opportunities to engage in group sex with females with or without their consent
– no single joint
criminal enterprise – no single transaction
– no probative value in nominated state of mind – prejudicial effect
– evidence not cross-admissible – correct ruling regarding the
cross-admissibility of the evidence would have been an
order for separate trials
CRIME — appeals — appeal against conviction —
whether trial judge erred by giving a warning under s 165(1)(d) of the Evidence
Act 1995 (NSW) — whether witness reasonably supposed to be
criminally concerned in the events giving rise to the proceeding —
whether
there were “good reasons” not to give a warning under s 165(3)
— where evidence of witness favourable to and exculpatory of accused
— whether unreliability warnings should be confined
to evidence which
supports the prosecution case — House v The King error established
CRIME — appeals — appeal against conviction —
whether trial judge erred by failing to give a direction under s 116 of the
Evidence Act 1995 (NSW) — whether evidence of witness is identification
evidence — where reliability of identification evidence is fundamental
to
prosecution case — whether leave should be granted under r 4.15 of the
Supreme Court (Criminal Appeal) Rules 2021 (NSW) as direction not requested at
trial — mandatory terms of s 116 — error
established CRIME — appeals — appeal against conviction
— unreasonable verdict — weight given to advantages of the jury
— problems with directions — whether open to jury properly directed
to be satisfied beyond reasonable doubt — convictions
of Maurice Hawell
and Andrew David on Friday night counts not unreasonable — convictions of
Marius Hawell on Friday and Saturday
night counts quashed and acquittal
entered
Judgment (471 paragraphs)
[1]
CRIME - appeals - convictions for sexual intercourse without consent in company based on joint criminal enterprise liability - agreement to commit a crime - allegations of non-consensual group sexual intercourse between two complainants and three accused and another male following consensual group sexual activity - trial judge's description of the joint criminal enterprise as one to sexually assault, have sexual intercourse with or sexually touch "with or without" the consent of the complainants - agreement to do so reckless as to whether complainants consenting - whether the actus reus the subject of the agreement was sexual intercourse or sexual intercourse without consent - whether extended definitions of knowledge of absence of consent capable of coherent combination with joint criminal enterprise liability on facts of this case - relevant actus reus sexual intercourse without consent - inadvertent recklessness not capable of coherent combination with joint criminal enterprise liability - advertent recklessness capable of coherent combination with joint criminal enterprise liability
[2]
CRIME - appeals - cross-admissibility of evidence of two different alleged joint criminal enterprises arising on different nights with different complainants - trial judge refused separate trials regarding the different complainants and different nights on the basis that there was one joint criminal enterprise - tendency and coincidence reasoning not pressed by prosecution and not a reason for permitting cross-admissibility - transaction evidence - intermediate state of mind of the applicants over the weekend to seek opportunities to engage in group sex with females with or without their consent - no single joint criminal enterprise - no single transaction - no probative value in nominated state of mind - prejudicial effect - evidence not cross-admissible - correct ruling regarding the cross-admissibility of the evidence would have been an order for separate trials
[3]
CRIME - appeals - appeal against conviction - whether trial judge erred by giving a warning under s 165(1)(d) of the Evidence Act 1995 (NSW) - whether witness reasonably supposed to be criminally concerned in the events giving rise to the proceeding - whether there were "good reasons" not to give a warning under s 165(3) - where evidence of witness favourable to and exculpatory of accused - whether unreliability warnings should be confined to evidence which supports the prosecution case - House v The King error established
[4]
CRIME - appeals - appeal against conviction - whether trial judge erred by failing to give a direction under s 116 of the Evidence Act 1995 (NSW) - whether evidence of witness is identification evidence - where reliability of identification evidence is fundamental to prosecution case - whether leave should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as direction not requested at trial - mandatory terms of s 116 - error established
[5]
CRIME - appeals - appeal against conviction - unreasonable verdict - weight given to advantages of the jury - problems with directions - whether open to jury properly directed to be satisfied beyond reasonable doubt - convictions of Maurice Hawell and Andrew David on Friday night counts not unreasonable - convictions of Marius Hawell on Friday and Saturday night counts quashed and acquittal entered
Australian Law Reform Commission, Family Violence - A National Legal Response: ALRC Report 114, (November 2010)
[94]
David Brown et. al, Criminal Laws Materials and Commentary on Criminal Law and Process of New South Wales (8th ed, 2025, Federation Press)
[95]
David Ormerod and Karl Laird, Smith and Hogan's Criminal Law (14th ed, 2015, Oxford University Press)
[96]
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book
[97]
G Bashir SC / L C Hutchinson / A Burkitt (Applicant - Maurice Hawell)
[98]
M Thangaraj SC / T Woods (Applicant - Marius Hawell)
[99]
Gregory Goold Solicitors (Applicant - Maurice Hawell)
[100]
Korn Tlais Defence Lawyers (Applicant - Marius Hawell)
[101]
Solicitor for Public Prosecutions (NSW) (Respondent)
[102]
Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of, or any matter that could identify, the complainants is prohibited.
[103]
A non-publication order was made during the trial on 27 June 2024 in relation to anything that might identify the witness [ZG].
[104]
[This headnote is not to be read as part of the judgment]
[105]
The applicants and several other young men attended a "buck's weekend" in Newcastle in February 2022 to celebrate the imminent marriage of Maurice Hawell. On the Friday and Saturday nights some of the men had sexual relations with a number of young women in the apartment they had rented for the weekend. Some of this was consensual, including group sexual activity. On the evidence of three of the young women, MF, DM and MS, some of the sexual activity was not consensual. Maurice Hawell, his younger brother Marius Hawell and Andrew David were jointly tried and convicted for various sexual offences arising out of those events.
[106]
There were 11 counts on the indictment. Counts 2-7 related to an episode on the Friday night involving MF and DM for which all three applicants were charged. Counts 8-11 related to an episode on the Saturday night involving MS, for which Maurice Hawell and Andrew David were charged with all four counts while Marius Hawell was also charged with the final two. Count 1 concerned a separate offence on the Friday night for which Maurice Hawell was charged alone. On 15 and 16 July 2024 the jury returned guilty verdicts on all but one of the counts (count 7).
[107]
The prosecution case for counts 2-11 was based on joint criminal enterprise liability; one in relation to MF and DM on the Friday night, and a different one in relation to MS on the Saturday night. The prosecution relied upon the same evidence to prove the agreement, the participation in it by the applicants, and the commission of offences in furtherance of it. The trial judge's directions to the jury variously described the two joint criminal enterprises as agreements to sexually assault, sexually touch, or engage in sexual intercourse or sexual activity "with or without" the consent of the women, knowing they were not consenting or reckless to that fact. No definition of "reckless" was provided in connection with the terms of the agreement. A definition of recklessness, provided in relation to the elements of individual counts of sexual assault alleged to have been committed, included inadvertent recklessness (failure to consider at all whether the complainant was consenting).
[108]
Before the commencement of the trial, the accused all sought to have separate trials with respect to the Friday night counts and the Saturday night counts, pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW). Although the argument on this was initially focused on whether the evidence relating to each night was cross-admissible in support of the allegations of the other night relying on tendency or coincidence reasoning, the trial judge queried whether the evidence could be characterised as "transaction evidence" or evidence of a continuing state of mind of the three accused over the weekend. This was adopted by the Crown, and her Honour refused the application for separate trials. At the conclusion of the evidence in the joint trial, the Crown indicated that it did not press reliance on tendency or coincidence reasoning.
[109]
In giving reasons, after the jury returned its verdicts, for allowing the cross-admissibility of evidence between the nights and not separating the trials, the trial judge referred to a single joint criminal enterprise over the weekend having been alleged by the Crown. On this basis her Honour reasoned that the evidence could be admitted as "transaction evidence" within the principles established in O'Leary v The King(1946) 73 CLR 566; [1946] HCA 44, confirmed in R v Adam[1999] NSWCCA 189; (1999) 106 A Crim R 510. Her Honour found that the evidence was also capable of demonstrating the accused to have a relevant state of mind that continued over the weekend.
[110]
The trial judge directed the jury that if they were satisfied that the evidence revealed each accused to have a state of mind to seek out experiences or opportunities to engage in group sex with females, with or without their consent, this may be taken into account in support of the counts on the indictment.
[111]
Matthew Anoih attended the buck's weekend and was present in the apartment at relevant times on the Friday night. He was not charged with any offence arising out of the events and was called as a prosecution witness. His evidence was important and capable of affecting the strength of the case against the accused in relation to counts 1-7. On the application of the prosecution the trial judge provided an unreliability direction to the jury in relation to his evidence. This was on the basis that Mr Anoih was said to be criminally concerned with the allegations of unlawful acts, where his level of involvement in and presence near the non-consensual group sex was the subject of conflicting accounts.
[112]
ZG had been invited to the apartment on Saturday night and was sitting in the kitchen area as the men were coming and going. She provided evidence identifying Marius Hawell as the man she saw enter the bedroom where the alleged sexual assault of MS was taking place, which was relied on by the Crown in establishing counts 10-11. The trial judge did not warn the jury as to the dangers of identification evidence and the special need for caution in accepting such evidence.
[113]
The applicants raised multiple grounds of appeal, some of which were overlapping. Marius Hawell sought an acquittal on all counts, while Maurice Hawell and Andrew David sought acquittals in relation to the Friday night allegations and a new trial on the Saturday night counts. The following key issues arose:
[114]
(1) Whether an agreement to have sexual intercourse "with or without" the consent of the complainant was consistent with the requirement of joint criminal enterprise liability that there be an agreement to commit a crime (in addition to participation in the agreement, and the offence having been committed pursuant to the agreement).
(2) Whether recklessness as to absence of consent was compatible with joint criminal enterprise liability in circumstances such as alleged in this trial.
(3) Whether the trial judge's directions on the elements of sexual assault directed to proof of the liability of the "respective accused" in turn, rather than to "the agreement", shifted focus from the agreement.
(4) The cross-admissibility of the evidence and failure to sever the Friday night counts 1-7 from the Saturday night counts 8-11.
(5) The directions concerning the applicants' state of mind.
(6) The unreliability direction given in relation to the evidence of Matthew Anoih.
(7) The failure to direct the jury about the need for special caution in accepting identification evidence given by the witness ZG identifying Marius Hawell.
(8) Whether the verdicts on the Friday night counts 1-7 for all the applicants were unreasonable or unable to be supported having regard to the evidence.
(9) Whether the verdicts on the Saturday night counts 10 and 11 were, in relation to Marius Hawell, unreasonable or unable to be supported having regard to the evidence.
(10) The admissibility of Exhibit 42, a recording of a telephone intercept involving Marius Hawell.
(11) Marius Hawell's appeal against his sentence.
[115]
The Court held (Free JA, Hamill and Rigg JJ), allowing the conviction appeals and quashing the convictions of each applicant, acquitting Marius Hawell and ordering a re-trial or re-trials for Maurice Hawell and Andrew David:
[116]
(1) The actus reus of sexual assault is not merely sexual intercourse, but sexual intercourse without consent. An agreement to have sexual intercourse with a person is not an agreement to commit a crime. The actus reus of this crime, which needed to be the subject of the agreement, was sexual intercourse without consent: [136]-[141], [189]-[190].
(2) Inadvertent recklessness was not capable of coherent combination with joint criminal enterprise liability in the circumstances of this case. Advertent recklessness was capable of coherent combination with joint criminal enterprise liability: [176]-[183], [188]-[189].
R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga[2010] NSWCCA 228, not followed.
[120]
(3) The focus in the directions to the jury on the elements of each act committed in furtherance of the agreements, going through each element of each count from the perspective of "the accused" or "each accused", improperly shifted focus away from the agreement: [196].
[121]
(4) There was not a single joint criminal enterprise, nor a single transaction. The events of each night did not form an integral part of the events of the other night, such that each could not be truly isolated from the other, nor appearing as unreal and not very intelligible if not presented jointly. There was no probative continuing or enduring state of mind. Further, any probative value of the evidence in the ways nominated by the trial judge, or as context evidence, was significantly outweighed by the danger of unfair prejudice to the accused: [249]-[250], [265]-[275].
(5) The directions to the jury regarding the support that may be provided to the prosecution case by the state of mind described were erroneous: [279].
[124]
(6) While the trial judge correctly formed the view that Matthew Anoih could have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings under s 165(1)(d) of the Evidence Act 1995 (NSW), the fact that aspects of his evidence were not relied on by the prosecution and were indeed favourable to and exculpatory of the accused constituted "good reasons" under s 165(3) for the trial judge to refuse the prosecution's request to make such a direction. A warning under s 165(1)(d) is not usually appropriate where the evidence of the witness is favourable to the accused and should ordinarily be confined to those aspects of the witnesses' evidence which advance the prosecution's case against the accused: [316]-[317], [334].
(7) The unreliability warning given by the trial judge in respect of the evidence of Matthew Anoih, over objection, amounts to a House v The King(1936) 55 CLR 499; [1936] HCA 40 error, where that direction had a real and not fanciful capacity to influence the jury's reasoning to a verdict of guilty in relation to counts 1-7, in light of the importance of the evidence of Matthew Anoih regarding the events of the Friday night: [341], [343].
[127]
(8) Section 116 of the Evidence Act is expressed in mandatory terms and a direction must be given in relation to disputed identification evidence even if not requested by one or other of the parties: [361].
(9) The evidence of ZG identifying "male number 6" as the man who was in the apartment and entered the room where the sexual assault occurred, together with her evidence that she selected a photograph of male number 6 from an array shown to her by police, and the evidence of Detective Sergeant Keegan that the photograph in question was of Marius Hawell, falls squarely within the definition of "picture identification evidence" contained in s 115(1) of the Evidence Act and is therefore "identification evidence" for the purpose of s 116: [359]-[360].
(10) A central issue in relation to counts 10-11 was the accuracy and reliability of ZG's evidence regarding the identity of male number 6 and whether he was the man who entered the bedroom. The failure of the trial judge to warn the jury as to the dangers of identification evidence and the special need for caution in accepting such evidence could therefore have realistically affected the jury's reasoning and was an error of law. While counsel did not request such a direction, it would be wrong to invoke r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and refuse leave to argue this ground given the importance of the evidence and the history of the law in terms of mistaken identification: [365]-[366], [376], [379].
(11) There are well established principles governing appeals on the basis that verdicts are unreasonable or unable to be supported having regard to the evidence. It is for the Court to review the evidence and determine whether it was "open" to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court must make its own independent assessment of the sufficiency and the quality of the evidence. The Court must first ask itself whether it has a doubt about guilt and, if so, whether that doubt is capable of being resolved by the jury's advantage in seeing and hearing the witnesses give evidence: [383]-[384].
(12) The nature and extent of the jury's advantage will vary from case to case. In this case, the problems with the directions are likely to have affected the reasoning of the jury in significant respects. In these circumstances, caution needs to be exercised when making allowance for the advantage of the jury. Nonetheless, it is apparent from the verdicts of guilty that the jury accepted the evidence of DM, MF, MS and ZG to be credible and reliable. This attitude cannot be wholly disregarded or explained away on the basis that it was the result of an error in direction: [385]-[391].
(13) The verdict of guilty in relation to count 1, which solely concerned Maurice Hawell offending against MF, was open to the jury. There were no relevant features of the evidence that meant that the jury ought to have entertained doubt about MF's evidence regarding count 1. While there was a need for particular caution in considering how the jury approached relevant evidence of Matthew Anoih in support of Maurice Hawell's account, in light of the erroneous unreliability direction given, a properly directed jury would have been entitled to doubt the credibility and reliability of his evidence: [392]-[401].
[138]
(14) The verdicts of guilty in relation to counts 2 and 3 for Maurice Hawell and Andrew David were open to the jury. These counts concern offending against DM on the Friday night. The significance of DM's conduct, including inconsistencies and discrepancies in her account, was a matter to be assessed by the jury, which was in a far better position to assess her evidence than the judges of this Court. There were no discrepancies or inconsistencies of such a significant kind as to establish a doubt that ought to have been perceived by the jury and could not be explained by its advantages: [402]-[429].
(15) The verdicts of guilty in respect of Maurice Hawell and Andrew David in relation to counts 4-6 were open to the jury. These counts concern offending against MF on the Friday night. None of the points advanced by the applicants impugning the credibility or reliability of MF's account, either viewed in isolation or in combination with other considerations, gave rise to a doubt of a kind that could not be explained by the advantageous position of the jury: [430]-[447].
[141]
(16) The verdicts of guilty for Marius Hawell on the Friday night counts 2-6 were unreasonable. The Crown's joint criminal enterprise case for the Friday night depended on the proposition that each accused was privy to the circumstances in which the assault of DM and MF commenced. On the premise that the jury accepted the evidence of DM and MF, that evidence does not establish beyond reasonable doubt that Marius Hawell was present at all relevant times. MF observed him to be fully clothed in the open living area immediately before the start of the assault inside the bedroom, which involved DM and MF being grabbed and pushed onto a bed. It could not be established on the evidence that Marius Hawell was present at that point. The convictions of Marius Hawell on counts 2-6 must be quashed and an acquittal entered: [448]-[466].
[142]
(17) The verdicts of guilty for Marius Hawell on the Saturday night counts 10 and 11 were unreasonable. It was not open to the jury to find that the Crown had established beyond reasonable doubt that Marius Hawell was the person who entered the room and observed Maurice Hawell and Andrew David having sex with MS. ZG's identification of "male 6" (and therefore Marius Hawell) as the person who entered the room was essential to the case against him on counts 10 and 11. ZG had given a statement to police in which she said that "male 6" left the apartment with her after the events in question. CCTV evidence established that Marius Hawell did not leave the apartment with ZG. The doubt surrounding this critical identification evidence could not be explained by the advantages enjoyed by the jury, particularly given that the jury was not given the warning that it ought to have been given. The convictions of Marius Hawell on counts 10 and 11 must be quashed and an acquittal entered: [467]-[476].
[143]
(18) In light of Marius Hawell's acquittal, it was unnecessary to consider the admissibility of the telephone intercept, which raised no issue of principle, nor the grounds of appeal against his sentence: [477].
[144]
THE COURT: Maurice Hawell, Andrew David and Marius Hawell (together "the applicants") each seek leave to appeal against their convictions for various sexual offences. The convictions were entered on 15 and 16 July 2024 following the applicants' joint trial before her Honour Judge O'Rourke SC and a jury in the District Court sitting in Sydney. The offences arose out of events that took place at an apartment in Newcastle on Friday 25 and Saturday 26 February 2022. The applicants and several other young men were on a "buck's weekend" celebrating the imminent marriage of Maurice Hawell. On the Friday and Saturday nights some of the men had sexual relations with a number of young women in the apartment, which was rented on a short-term basis for the weekend. A good deal of that sexual activity, including "group sex" involving three or more people, was consensual. On the prosecution case, and on the evidence of (at least) three of the young women ("MF", "DM" and "MS"), some was not.
There are statutory prohibitions and non-publication orders over material that might identify the complainants and some of the witnesses in this case.
The prosecution case was put to the jury, at least with respect to counts 2-11, on the basis that the three applicants were participants in joint criminal enterprises to have group sex with women "with or without their consent". There are multiple grounds of appeal, some of which concern specific jury directions and some which relate only to one or two of the applicants. However, much of the argument was concerned with whether an agreement so particularised could constitute a joint criminal enterprise capable of leading to a conviction on the offences charged on the indictment. Related to that controversy were the directions relating to the state of mind required to be proved against the applicants. Count 1 was charged against Maurice Hawell only and proof of that count did not rely on the impugned joint criminal enterprise which permeated each of the other counts.
The applicants were arraigned on 11 June 2024 and again, in the presence of a jury panel, on 17 June 2024. There were 11 counts on the indictment. Each of the applicants pleaded not guilty to all of the counts relating to them. The jury was empanelled on 17 June 2024 and evidence was called by the prosecution over the next two weeks or so. The prosecution case was closed on 4 July 2024 and Maurice Hawell gave evidence and was cross-examined on 4-5 July 2024. No other evidence was called in Maurice Hawell's case and neither Marius Hawell nor Andrew David gave evidence or called witnesses at the trial. Counsel addressed the jury from 8-11 July 2024. The trial judge summed up on 11 July 2024 and the jury retired to consider its verdicts at 2:50pm that day. At about 1:00pm on 15 July 2024 the jury returned verdicts of guilty against each of the applicants who was charged with counts 2, 3, 4, 5, 6, 8, 9, 10 and 11. The jury continued to deliberate with respect to counts 1 and 7. Shortly before 10:00am on 16 July 2024 the jury returned a guilty verdict on count 1 against Maurice Hawell (the only accused charged with the offence alleged in that count), and a short time later the jury was discharged because it was unable to agree on the verdicts with respect to count 7.
[145]
Counts 1-7 related to the events on the Friday night while counts 8-11 related to the Saturday night. The following table sets out the counts on the indictment, the applicant(s) against whom that count related, the complainant to whom that count related, the offence and the statutory provision, and a short statement of the particulars of the charge:
After Mr Anoih and MF had consensual sex in the middle bedroom, Maurice Hawell entered the bedroom, naked, and MF pulled the blanket up over herself. He walked over to MF and asked "Can I join you and Matt" and "I'm a better root than Matt" and MF said "no". He then "reached down and put his hand on [MF]'s thigh, like up near [her] groin" and she pushed his hand away and said, "I don't like want that".
[148]
Counts 2-7 related to a single episode on the Friday night.
[149]
Sexual intercourse without consent in circumstances of aggravation, namely being in company.
The accused men entered the middle bedroom where MF and DM were and one of the men turned the light off. DM was pushed onto the bed and one of the men in the room forced his penis into her vagina.
[152]
Sexual intercourse without consent in circumstances of aggravation, namely being in company.
Within minutes, another man moved onto DM's body and knelt on her arms, preventing her from moving, and his body was covering her face. He then put his penis into her mouth.
[155]
Attempt to have sexual intercourse in circumstances of aggravation, namely being in company.
MF was pushed onto the bed and one of the men situated himself over her face and she could see someone's "bum" in her face. One of the men tried to push his penis into her mouth, but she repeatedly tried to push it away from her mouth.
[158]
Intentionally touch without consent in circumstances of aggravation, namely being in company.
Moments after one of the males had let go of her right hand, and while someone was still on her face and someone's penis was still in her vagina, MF felt something go into her anus. She felt pain and yelled out "Ouch".
[167]
Counts 8-11 related to a single episode on the Saturday night.
[168]
Sexual intercourse without consent in circumstances of aggravation, namely being in company.
As Andrew David was straddling MS, Maurice Hawell got on top of MS and put his penis into her vagina and had sexual intercourse with her. He had his hands on her chest and MS tried to close her legs to stop him, but he forced her legs open.
[174]
Sexual intercourse without consent in circumstances of aggravation, namely being in company.
While this was occurring, Marius Hawell opened the door and entered the bedroom, standing at the end of the bed. Maurice Hawell and Andrew David swapped positions. Maurice Hawell came up to MS's head and straddled her and put his penis in her mouth, thrusting it in and out.
[177]
Sexual intercourse without consent in circumstances of aggravation, namely being in company.
At the same time, Andrew David walked to the end of the bed. MS tried to keep her legs closed but Andrew David forced her legs open and put his penis into her vagina and began moving it in and out. MS could see Marius Hawell walking back and forth at the end of the bed.
[180]
There are several grounds of appeal which are common between the applicants, or which address similar issues, and others which relate only to one or more of the applicants. Some of the grounds, if upheld, would ordinarily result in a new trial. Other grounds, if accepted, would result in a verdict of not guilty.
Maurice Hawell advanced the following grounds of appeal:
[181]
"1. The directions relating to the alleged joint criminal enterprise (JCE) were erroneous.
2. The trial miscarried as a result of the trial judge refusing to separate the trials of Counts 1-7 (the Friday-night charges) from Counts 8-11 (the Saturday-night charges).
3. Her Honour erred in holding that the 'evidence in support of the eleven counts' (and the [ZG] evidence) was cross admissible on all counts.
4. There was error of law and/or a miscarriage of justice on account of the directions of the trial judge as to proof of the 'state of mind' of the applicant.
5. The trial miscarried as a result of the unreliability direction given in respect of the evidence of Matthew Anoih.
6. The verdict on Count 1 is unreasonable.
7. The verdicts on Counts 2-3 are unreasonable.
8. The verdicts on Counts 4-6 are unreasonable."
[182]
Andrew David's grounds of appeal were as follows:
[183]
"1. The directions relating to the alleged joint criminal enterprise (JCE) were erroneous and confusing.
2. The trial judge erred in her Honour's reasons:
[184]
a. for concluding that the 'evidence in support of the eleven counts' (and the [ZG] evidence) was cross admissible on all counts; and
b. in refusing the severance application.
[185]
3. The directions relating to the 'state of mind' evidence were erroneous, confusing and occasioned a miscarriage of justice.
4. The trial miscarried as a result of the unreliability direction given in respect of the evidence of Matthew Anoih.
5. The verdicts in relation to counts 2 and 3, concerning the complainant DM, are unreasonable and cannot be supported having regard to the evidence.
6. The verdicts in relation to counts 4, 5 and 6, concerning the complainant MF, are unreasonable and cannot be supported having regard to the evidence."
[186]
"1. The directions relating to the alleged joint criminal enterprise were erroneous and confusing.
2. The trial Judge erred in her Honour's reasons:
[187]
a. for concluding that 'the evidence in support of the eleven counts' (and the [ZG] evidence) was cross admissible on all counts; and
b. in refusing the severance application.
[188]
3. The directions relating to the 'state of mind' evidence were erroneous, confusing and occasioned a miscarriage of justice.
4. The trial Judge erred in failing to direct the jury as required by s 116 of the Evidence Act 1995 (NSW).
5. The verdicts are unreasonable or cannot be supported having regard to the evidence.
6. The trial Judge erred in failing to exclude Exhibit 42 pursuant to s 137 of the Evidence Act.
7. The sentencing Judge erred in making an adverse finding without notice to the applicant on an issue of fact upon which the Crown had expressly disclaimed reliance.
8. The applicant has a justifiable sense of grievance because of the sentence imposed upon Maurice Hawell."
[189]
The grounds raised by each of the applicants relating to the directions about the joint criminal enterprise are fundamental to the appeals and will be dealt with first. The grounds concerning the cross-admissibility of the evidence, failure to sever counts 1-7 from counts 8-11, and the directions concerning the applicants' states of mind are connected between themselves (and have some relationship to the joint criminal enterprise grounds) and will be jointly dealt with next. Maurice Hawell and Andrew David have a common ground of appeal relating to the unreliability direction relating to the witness Matthew Anoih, while Marius Hawell has a stand-alone ground concerning the failure to direct the jury about the need for special caution in accepting identification evidence given by a witness, ZG. Marius Hawell seeks a verdict of acquittal on all counts, while the other applicants seek acquittals only in relation to the counts arising from the Friday night allegations. Marius Hawell's grounds (7 and 8) relating to his sentence appeal need not be decided if his appeal against conviction is upheld. Marius Hawell also has a stand-alone ground, ground 6, which relates to the admissibility of Exhibit 42.
[190]
Overview of the evidence adduced by the prosecution at trial
[191]
The apartment, on Parry Street, was booked for the buck's weekend by Maurice Hawell. There were three bedrooms within the apartment, arranged next to each other. The doors to the three bedrooms opened onto an open plan living, dining and kitchen area. References in this judgment to the positioning of the bedrooms are given from the perspective of a person facing the bedrooms from the open plan area. The critical bedrooms were the middle bedroom and the bedroom on the right.
CCTV footage was available showing the movement of various people outside the apartment and a CCTV timeline was prepared by a Detective Senior Constable Jai Bellman. It was tendered and became an agreed document between all parties. It described the movements of various people identified in the CCTV footage at different times.
Based on the CCTV timeline, the only males who entered the apartment between 6.05pm on Friday 25 February 2022 and 8.57am on Sunday 27 February 2022 were Maurice Hawell, Marius Hawell, Andrew David, George Enwiya, Matthew Anoih, David Babanour, Zaid Haddad, George Haddad and Oujin Toma. Mr Enwiya gave evidence that Oujin Toma attended only on the Saturday night, but the other men stayed in the apartment on both nights. Mr Enwiya was unwell on the Friday night and mostly stayed in the bedroom on the left.
[192]
MF and DM were both 18 years old as of 25 February 2022. That evening they socialised with each other and their friends TG and BT. They attended The Cambridge Hotel in Newcastle. MF consumed a capsule of MDMA before she entered the hotel and she and DM had both consumed alcohol. They consumed more alcohol at the hotel.
While in the poker machine area of the hotel MF met a man who introduced himself as "Matt", who was with a male friend. There was no dispute at the trial that the "Matt" in question was Matthew Anoih. MF interacted with Matt at the hotel over the course of the evening. He eventually invited her back to the apartment. MF agreed, on the basis that DM was also able to come. A friend of Matt's invited DM back to the apartment. MF gave evidence that she, DM, Matt, a friend of his wearing a white shirt and another male friend walked to the apartment together from the hotel. After being shown a segment of CCTV footage MF agreed that she was wrong about the fifth person and accepted that only she, DM, Matt and the friend in the white shirt had walked back to the apartment. DM described that friend as "Joseph", based on their introduction at the hotel. It was not in dispute at the trial that the man in question was in fact Maurice Hawell.
When they reached the apartment, MF sat on the lounge and DM went into one of the bedrooms with Maurice Hawell. DM's evidence was that it was the bedroom on the right of the three bedrooms.
DM and Maurice Hawell had consensual sexual intercourse in the bedroom, where they were alone. DM said that during the intercourse the man she knew as Joseph had asked if his friend could join and she said "no". He asked on more than one occasion and at some stage she agreed. Another man entered the room. There was no dispute at trial that Andrew David was the man in question.
Andrew David asked if he could remove his pants. DM said "whatever" and Andrew David removed his pants. He asked if DM could make him hard and she gave him oral sex. DM proceeded to have consensual sexual intercourse with Andrew David. After the intercourse was finished he and Maurice Hawell left the bedroom. A third man entered and asked DM how she was feeling. On the Crown case, the man was Marius Hawell. The conduct was not charged, although the Crown relied on it as evidence that Marius Hawell had a sexual interest in DM, which was relevant to the subsequent events that were charged. The man touched DM's vagina. DM could not remember if she did or said anything when he did so. She later told police that she did not mind the man touching her vagina. DM later got dressed and left the bedroom.
[193]
After MS complained to police about the events of the Saturday night, MF and DM were contacted by police; about two weeks after these events. MF attended a police station and gave a statement. Under cross-examination MF agreed that when she made her first statement she thought it was important to tell the police everything she could remember about the alleged sexual assault. She agreed that she did not do that, because she deliberately left out of the first statement the allegation that her anus was penetrated by something. She disagreed that this was because that had not happened. The reference to something penetrating her anus featured in a second statement to police around six weeks later.
DM said that when she first spoke to the police in person she told them that she consented to all of the sexual activity. She later spoke to her nan about what had occurred, then her stepmother and her father also became aware. DM accepted that when she gave her first statement to police it was important to tell the truth. She also accepted that what she had told the police was not the truth. Under cross-examination DM accepted that she told police in her first statement that she gave "full consent" because she did not say anything to indicate that she did not want to be involved in the sex and because she acted as though she was consenting.
The engagement with police prompted a text exchange between MF and DM. MF said in one message "I feel scared, embarrassed, sad, angry and so down" and in a later message said "I don't think the situation funny anymore, it's quite serious and if you want me to stay again tonight for some comfort, I'll be down to stay x". Under cross-examination MF gave evidence that she did not think at any time that what had happened with her and DM in the bedroom was funny.
[194]
MS was 19 years old as of 26 February 2022. That evening she attended The Cambridge Hotel. She consumed three alcoholic drinks before going to the hotel and had two more drinks at the hotel. At around 11.10pm MS went outside the hotel to make a telephone call. As she was walking down Denison Street, a man ran out of a bush and spoke to her. He invited her to come for pre-drinks with him and his friends. He said his name was "Jonathan". MS said no to the proposal to join Jonathan and his friends for drinks but he was persistent. She sent a message to a group chat of her housemates that said "im [sic] being kidnapped", which she explained she did because she felt unsafe from the pestering by Jonathan. Under cross-examination MS confirmed that she did not mean to convey that she was literally being kidnapped. MS did eventually enter the Parry Street building where the apartment was located, but before doing so sent a message to a friend saying "Help me. Answer".
The CCTV footage showed that the person with MS when she entered the building was Maurice Hawell. Other witnesses including Maurice himself confirmed that it was Maurice Hawell who had met MS on Denison Street and brought her back to the apartment.
When they entered the apartment, MS saw another man and a woman sitting on a stool in the kitchen area. Once inside the apartment, Maurice Hawell grabbed MS's hand and led her into a bedroom. MS said that she did not realise it was a bedroom that they were entering and she went in thinking that was where pre-drinks were going to be consumed.
The woman in the kitchen was ZG. ZG was a clinical psychologist, aged 31 at the time she gave evidence. She had arranged to meet a man on the dating application Bumble. She did not know the name of the man, but he had said he was staying in Newcastle and visiting from Sydney. ZG was invited to the apartment, which she attended. She was greeted by the man she had arranged to meet, and there were quite a few other men present in the apartment. The man that ZG had arranged to meet over Bumble was referred to as male 1. Zaid Haddad gave evidence that he was the man who had arranged to meet ZG and who greeted her at the apartment.
ZG sat on a seat at the corner of the kitchen bench. ZG estimated that there were seven men in the apartment in total that she saw. When she later made a police statement, she referred to them as male 1 to male 7. While ZG was in the kitchen area the men were coming and going.
[195]
Maurice Hawell gave evidence at trial. In relation to the events of Friday night, he said that at The Cambridge Hotel he was told by Matthew Anoih that MF wanted to come back to the apartment to have sex, but only if her friend DM could also have sex with someone and he asked Maurice to come back with DM. Maurice Hawell's evidence was that on the walk back to the apartment DM proposed they should have sex at the apartment. He also proposed having group sex and she said "We can all have an orgy".
Maurice Hawell described in his evidence having consensual sex with DM in the bedroom furthest to the right. He asked if DM wanted to have sex with his friend. When DM agreed, he called Andrew David on his phone. He denied speaking in a foreign language at any time in the presence of DM. Maurice Hawell said that after the call to Andrew David he went to the middle room and opened the door. Matthew Anoih and MF were inside and the light was on. He asked Matt if MF wanted to have a foursome orgy. He also gave evidence that he said to MF "I'm good at having sex". MF said she was down but it was up to Matt. Maurice Hawell denied touching MF on the thigh during this encounter. His evidence was that he remained at the door and did not enter the room.
Maurice Hawell then returned to the other bedroom, at which point Andrew David arrived back in the apartment. Mr David introduced himself to DM and asked if she wanted to have sex with him. They began having penile-vaginal sex. Maurice Hawell said that he stayed in the room for a few minutes. He then went into the living area where Mr Anoih approached him and told him that MF was prepared to have a foursome if DM joined in. Maurice Hawell called out to DM and they then went into the middle bedroom together.
Maurice Hawell said that the light was on and remained on in that room. He described MF and DM lying on the bed together. Maurice began having penile-vaginal sex with DM while Mr Anoih was doing the same with MF. Andrew David entered the room and said to MF "Can I join in?". MF responded "yes". Maurice Hawell said that Andrew David swapped positions with Matthew Anoih and began having vaginal sex with MF, who was on her back on the bed. At some point Maurice Hawell stopped having vaginal intercourse with DM and shuffled closer to MF who grabbed his penis and performed oral sex on him.
Maurice Hawell said that neither he nor anyone else forced MF to suck on their penis. He said that DM did not at any time perform oral sex on anyone in the room. He said that he could give that evidence because the light was on. He likewise said that neither he nor anyone else forced MF to touch their penis. Maurice denied ever having penile-vaginal intercourse with MF.
[196]
Maurice Hawell's account of events on the Saturday night
[197]
Maurice Hawell gave evidence that he had encountered MS on Denison Street and had a conversation with her. According to him, and in contrast to her evidence about the encounter, he told her that he was in Newcastle for a buck's celebration and when he asked MS if she wanted to come back to the apartment she said "so smooth" and "yes". He gave evidence that he told MS that his name was "Jonathan" because he was due to get married in a few weeks and did not want MS adding him on Facebook or Instagram. He said they were flirting with each other and MS had said that he would need to walk her back to The Cambridge Hotel after sex, which he promised to do.
In Maurice Hawell's account of what happened within the apartment, once in the bedroom he and MS grabbed each other and lay down and began kissing for a few minutes. He asked MS if she wanted to have sex and she said yes, but wanted him to turn off the light, which he did. After they undressed themselves and resumed kissing, Andrew David entered the room and asked MS if she wanted to have a threesome, to which she said "Yes". The three proceeded to have consensual sex. At one stage, according to Maurice Hawell, David Babbanour opened the door and started talking to him and Andrew David about what the sex was like.
[198]
Mr Anoih's evidence was in many respects consistent with Maurice Hawell's evidence. In relation to count 1, Mr Anoih corroborated Maurice's evidence that Maurice had come to the door when Mr Anoih and MF were having sex, and had stood at the door when he spoke to them without entering the bedroom or touching MF.
In terms of the group sex that occurred in the middle bedroom that was the subject of counts 2-7, Matthew Anoih's evidence was that Maurice Hawell and DM entered the bedroom together while the lights were on. Neither DM nor MF was pushed onto the bed. MF and Maurice started kissing and DM performed oral sex on Mr Anoih. Mr Anoih observed a seemingly consensual sexual encounter between Maurice Hawell, Andrew David, MF and DM, with the lights on. He did not observe anyone kneeling on the shoulders of MF or DM, or sitting on their faces. He did not hear MF ask him to get his friends to stop.
As Maurice Hawell concedes in his submissions to this Court, there were inconsistencies between the evidence of Mr Anoih and Maurice Hawell. For example, Mr Anoih gave evidence that at a time when he was not in the room he heard MF say "Where's Matt?", at which point he went to the door of the bedroom and said "Hey, I'm here are you okay?". She replied "Yes, I'm okay".
[199]
Andrew David did not participate in a police interview and did not give evidence at trial. His case in relation to the Friday night was that after receiving a phone call from Maurice Hawell he returned to the apartment to have sexual intercourse with a woman who was in the apartment and who consented to group sexual activity. He entered the bedroom on the right and asked DM if he could take his pants off and if she could make his penis hard. He then engaged in consensual oral sex, then consensual penile-vaginal sex, with DM.
Later he went into the middle bedroom where he, DM, MF, Maurice Hawell and Matthew Anoih were, and engaged in consensual oral sexual intercourse with DM and consensual penile-vaginal intercourse with MF. The critical dispute on his case, as on Maurice Hawell's, was whether or not DM and MF consented to the sexual activity in the room and whether there was an agreement of the kind alleged by the Crown.
In relation to Saturday night Andrew David's case is that he never engaged in any sexual activity with ZG. He did enter the bedroom where MS was with Maurice Hawell. His case is that he engaged in consensual oral sexual intercourse with MS for some minutes and then left the room, without engaging in any penile-vaginal intercourse with MS.
[200]
The case for Marius Hawell at trial was that the Crown could not prove that he was present in either of the rooms where the alleged offences took place on the Friday and Saturday nights and he was not a participant in the alleged joint criminal enterprises.
[201]
The directions given in relation to the joint criminal enterprise (Ground 1 in each appeal)
[202]
Her Honour provided directions regarding the onus and standard of proof, orally and in writing. The oral directions addressed this issue at an early stage, and indicated that what the Crown was required to prove beyond reasonable doubt were the essential facts or ingredients or elements of each particular charge. The written directions, MFI 67, commenced as follows:
[203]
"1. Each accused is presumed to be innocent of each count unless and until the jury find him [the respective accused under consideration] guilty.
2. The Crown bears the onus of proving each of the elements of each count on the indictment beyond reasonable doubt.
3. The evidence relating to each accused and each count must be considered separately."
[204]
Her Honour provided general directions regarding the doctrine of joint criminal enterprise, orally and in writing, in orthodox terms. In the elements document MFI 67 these were as follows, following from the three introductory propositions quoted above:
[205]
"The law is that where two or more persons carry out a joint criminal enterprise, in other words an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity.
This is so regardless of the particular role played in the enterprise by any particular participant. The Crown must establish both the existence of the joint criminal enterprise and the participation in it by the accused.
A joint criminal enterprise exists where two or more persons reach an understanding or agreement, amounting to an agreement between them, that they will commit a crime. ...
...
The agreement need not be expressed in words. Its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that you find are proved, beyond reasonable doubt, on the evidence.
The agreement need not be reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime, the participants have agreed that the crime should be committed by any one or all of them.
The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, a jury could infer or conclude that they had agreed to assault that person.
It does not matter whether the agreed crime was committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime (that is, a participant need not even be present at the time the crime is committed). All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each of them in its commission.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. The Crown must therefore prove, beyond reasonable doubt, each of the essential ingredients which make up that crime regardless of who committed them.
Further, in respect of a particular accused, the Crown must prove beyond a reasonable doubt that he was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons."
[206]
The oral directions involved reading these written directions reasonably closely.
In relation to counts 2-7, the trial judge described the joint criminal enterprise relied upon by the Crown as one "to sexually touch or to sexually assault the two complainants with or without their consent, knowing they were not consenting and/or reckless to that fact." The jury was directed that the Crown case was that such an understanding or arrangement amounting to an agreement was initially reached between each of the accused when the lights were turned off and the complainants were pushed on the bed in the middle bedroom. Her Honour repeated a similar description of the joint criminal enterprise; namely as one "to have sexual intercourse with or without the consent of a female, knowing they were not consenting in the company with at least one other person who was physically present and who shared the same purpose," when describing the element of "in company" in connection with counts 2 and 3.
Similarly the written directions provided to the jury stated, regarding counts 2-7:
[207]
"The agreement it is alleged is to sexually touch and/or sexually assault the two complainants with or without their consent, knowing they were not consenting and/or reckless to that fact."
[208]
The written directions, following the directions regarding joint criminal enterprise, addressed the individual counts. Regarding counts 2-3 there was a heading "Count 2 and 3: All three accused as part of a joint criminal enterprise." Her Honour recited the details of the charge and essence of the Crown factual allegation, then directed that the Crown was required to establish four essential elements which required proof beyond reasonable doubt before "the accused" could be found guilty. These were: firstly that the accused and / or a person acting in a joint criminal enterprise with him was in the company of at least one other who was physically present and shared the same purpose, secondly that the accused or a person acting in a joint criminal enterprise with him had sexual intercourse with DM, thirdly that DM did not consent and fourthly that "at the time of the sexual intercourse the accused knew DM was not consenting."
As to the fourth element, the written direction included the following:
[209]
"Element 4 - at the time of the sexual intercourse the accused knew [DM] was not consenting.
In relation to element 4 the Crown must prove to you, beyond reasonable doubt, that the respective accused knew that the complainant did not consent.
This requires you to consider what was going on in the respective accused's mind at the time of the act of sexual intercourse. It is his actual knowledge with which you are concerned and not what you would have realised, thought or believed nor what some other person would have realised, thought or believed.
You must consider all of the circumstances, including any steps taken by the accused to make sure the complainant consented to the sexual intercourse.
The Crown may establish the requisite state of mind on the part of the respective accused in either of two different ways. Namely, by establishing beyond reasonable doubt:
[210]
(i) That the accused actually knew the complainant was not consenting - if the Crown satisfies you beyond reasonable doubt that this was the state of mind of the accused at the time of the sexual intercourse then the fourth element of the charge has been made out; OR
(ii) That the accused was reckless as to whether the complainant was consenting in that he realised there was a possibility she may not have been consenting but he took the risk and went ahead and performed that act anyway or he simply failed to consider at all whether she was consenting but just went ahead with that act even though the risk she was not consenting would have been obvious to someone with his mental capacity had he turned his mind to it."
[211]
The oral directions regarding counts 2-3 followed closely the terms of the written directions. However after the brief description of the Crown's factual allegation, before proceeding to direct as to the elements, her Honour stated "So once again, because it's all three you have to approach this with the evidence that relates to each separate accused and consider each separate accused case separately."
The written direction for count 4 similarly required proof of these four elements, and directed the jury back to the direction regarding knowledge on the part of the respective accused that MF was not consenting, to the direction regarding counts 2-3. At the end of describing the elements for count 4, her Honour stated:
[212]
"If you find that all four of these essential facts (or elements) have been proved by the Crown beyond reasonable doubt, then the verdict should be 'guilty' to this count.
If you are not satisfied that the Crown has proved beyond reasonable doubt any one of the essential facts/elements making up the offence then your verdict should be 'not guilty'."
[213]
A similar direction had been provided after describing the elements of count 1, relating to Maurice Hawell only. It was provided after describing the elements of each count, other than for counts 2-3. At the end of the oral directions regarding counts 10 and 11 the equivalent direction was expressed in these terms: "Going through the case for each respective accused one by one, if you were to find all four of the essential facts, or elements, have been proved by the Crown, beyond reasonable doubt, the verdict should be guilty. If you are not so satisfied of any of those elements concerning, separately, each accused, then the verdict is not guilty."
For count 5, which was the charge of intentionally sexually touching MF, the written directions referred to the requirement to prove five elements, as proof was required of intentional touching and also that the touching was sexual (not the one element of actual or attempted sexual intercourse as required for counts 2-4). Her Honour stated that the Crown was required to prove that "the accused knew that the complainant did not consent" and referred back to the written directions provided in relation to count 1, except for the third method of proof of knowledge of absence of consent relied upon in connection with that count; namely, there being no reasonable grounds for any belief that the complainant was consenting. Accordingly, the definition of recklessness as there provided (including non-advertent recklessness) was incorporated.
The oral directions for counts 4 and 5 followed the written directions reasonably closely. In describing the first element of being "in company", in connection with count 4, her Honour said "So again, element 1 was in company, that is that the accused, the person that you are considering, and/or a person or persons acting in that joint criminal enterprise with him...".
The written direction for counts 6 and 7 again required proof of the four elements set out for counts 2-4, and directed the jury back to the direction regarding knowledge on the part of the respective accused that MF was not consenting to the direction regarding counts 2-3. The oral directions concerning counts 6 and 7 also followed the written directions reasonably closely.
In relation to counts 8 to 11, following the general directions regarding joint criminal enterprise and the initial directions regarding the joint criminal enterprise alleged for counts 2-7 set out above at [77]-[79], her Honour said:
[214]
"For counts 8 and 9, it is alleged that there was an agreement formed between the accused, Maurice Hawell and Andrew David, when both were in the bedroom and said to the complainant, 'threesome.' For counts 10 and 11, it is alleged that the agreement was also formed with the accused, Marius Hawell, when he walked into the bedroom, observed what was going on and the positioning of the other two accused over the complainant."
[215]
Her Honour described the elements of counts 8 to 11 in writing and orally in a format similar to that for the earlier counts, except that only actual knowledge was relied upon for knowledge of absence of consent on the part of Mr David and Maurice Hawell in connection with counts 8 to 11. In the course of oral directions regarding the element of knowledge of absence of consent for counts 8 and 9, her Honour said "... the Crown alone must prove the accused, the one that you are considering, knew the complainant was not consenting."
Whereas for counts 2-7 there had been a description of the joint criminal enterprise alleged as part of the general directions regarding joint criminal enterprise, there was no description at this same stage of directions of the agreement alleged in connection with counts 8 to 11. In the course of providing directions regarding the element of "in company" for counts 10 and 11, her Honour said:
[216]
"So the elements for these two counts, which you must consider, obviously separately, and separately for each accused, element 1; that the accused, and/or a person or persons acting in a joint criminal enterprise with him, that is, that enterprise to engage in sexual activity or intercourse with a female, with or without their consent, knowing they were not consenting, was in the company with at least one other person who was physically present and who shared the same purpose."
[217]
In relation to "knowledge" of non-consent on counts 10 and 11, the trial judge repeated the directions given for counts 2-3 but specified that the Crown did not rely on recklessness in order to establish knowledge of lack of consent for counts 10 and 11.
On the topic of separate consideration of the cases for each accused and each count (touched upon in the immediately above quoted directions), her Honour had provided general oral directions at an earlier stage of the summing up to the effect that there were effectively three trials in one, the jury's role could not be approached in a global fashion, the evidence pertaining to each count and each accused must be considered separately, and the jury should not in their deliberations try to determine whether all of the accused are guilty without considering them as individuals and giving each separate consideration. A direction incorporating aspects of the decision of this Court in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 ("Markuleski") was given in relation to the jury's assessment of individual complainants.
A matter dealt with in more detail in connection with further grounds of appeal, but which has some bearing on the joint criminal enterprise grounds, is the "state of mind" direction provided to the jury by her Honour. This was, in part, as follows:
[218]
"Now, as you are aware the Crown case is that from the events it says occurred over the Friday evening and the Saturday evening, you would be satisfied that it revealed each accused having a particular state of mind, and that state of mind was to seek out experiences or opportunities to engage in group sex with females with or without their consent. It was submitted that this state of mind existed within each accused over that weekend, and was so close in proximity to the counts on the indictment that you would draw an inference that it continued up to or existed at the time of the alleged offending conduct."
[219]
In relation to each applicant, her Honour particularised the demonstration of this state of mind as evidenced by his alleged criminal offending on the Crown case corresponding with the relevant counts on the indictment, as well as: for Maurice Hawell his repeatedly asking DM if a friend could join them in sexual activity (while they were engaged in consensual sexual intercourse) and Mr David then joining with her consent, his alleged (non-consensual but uncharged) sexual activity with ZG and entrance in the room when she was having sexual intercourse with Mr Haddad; for Mr David the same as Maurice Hawell regarding ZG; and for Marius Hawell his running to the apartment on the Friday night arriving about four minutes after the complainants, and what was said to be his non-consensual touching of DM while she was in bedroom three after her sexual contact with the other two accused. This touching was on DM's evidence consensual. Her Honour then provided directions as to why this "consensual activity" and the evidence of ZG had been placed before the jury.
[220]
The submissions regarding this ground of appeal were principally argued on behalf of Mr David, and adopted by the other applicants. We will generally refer to these as the applicants' submissions. There are two major aspects of the applicants' first ground of appeal, and they are closely related. A number of further subsidiary complaints are also connected with these two.
The first major complaint concerns her Honour's description of the joint criminal enterprise as one to have sexual intercourse, or sexually assault, or engage in sexual touching "with or without" the consent of the complainants. The applicants rely upon the standard explanation of basic joint criminal enterprise liability, as set out in the judgment of McHugh J in Osland v The Queen(1998) 197 CLR 316; [1998] HCA 75 ("Osland") at [73], quoting R v Tangye(1997) 92 A Crim R 545 ("Tangye"), which is that "A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime." It was submitted to be fundamental that there be an agreement to commit an offence (in addition to participation in the agreement, and the offence having been committed pursuant to the agreement). It was submitted to be essential to identify the "agreed crime", and which "acts and omissions" the parties did in fact agree upon, relying on Mitchell v The King(2023) 276 CLR 299; [2023] HCA 5 ("Mitchell") at [54]-[55]. It was submitted that even the physical elements of sexual intercourse without consent (sexual intercourse and absence of consent) require a mental state for agreement, and that close consideration was required as to what it meant mentally to agree as to even these physical elements of the charged crimes.
[221]
"... that enterprise to engage in sexual activity or intercourse with a female, without their consent, knowing they were not consenting..."
[222]
The third criticism was that the trial judge gave directions on the elements of sexual assault directed to liability of the "respective accused", orally and in the written directions. These referred to "the accused", rather than to "the agreement". The directions regarding proof of the fourth element of knowledge that the complainant was not consenting were submitted to be related to the actions and state of mind of the individual doing the act (that is, the principal in fact), even though no attempt was made to identify any such individual. It was submitted that addressing the elements by reference to what the respective accused did or did not do was misconceived.
The proposition was advanced that although the Crown was required to prove that the complainant was in fact not consenting in relation to each count, the Crown was not required to prove that the physical perpetrator knew this. It was however accepted during the hearing before us that on the facts of this case that was the practical requirement of the Crown's responsibility to prove the acts were in furtherance of the agreement.
It was submitted that references in the oral directions, such as that quoted above at [90] regarding the Crown's proof of the elements against "the accused, the one that you are considering," confirmed that agreement as the basis of liability was not the focus of this summing up in connection with counts 8 and 9. The related fourth criticism of the directions regarding joint criminal enterprise liability was that there was no description provided of the joint criminal enterprise for counts 8 and 9.
It was additionally submitted that an aspect of the standard direction contained in the Judicial Commission of New South Wales, Criminal Trial Courts Bench Book which was provided was of no application to this case. This was directing the jury that a person did not even need to be present to be liable on joint criminal enterprise principles. This was submitted to be inapplicable to any count the applicants faced, as the Crown presented its case, in spontaneously formed joint criminal enterprises requiring proof of the aggravating feature of commission in company.
The respondent's submission regarding the phrase "with or without consent" was that the directions sufficiently conveyed that the arrangement or understanding must have been to have sexual intercourse with (or sexually touch) a person who is not consenting and that that must have occurred. The respondent equated the term "with or without consent" with "regardless of their consent", and submitted that the directions as a whole made clear that the Crown must prove the complainants did not, in fact, consent. It was submitted that the directions given in the present case could not be understood to leave open, as a pathway to guilt, proof of a joint criminal enterprise to commit an offence against a consenting individual.
[223]
"There is no conceptual difficulty with an agreement or understanding for the purposes of a joint criminal enterprise being that the relevant physical acts will be carried out or accompanied by the fault element required for the offence. Particularly where an alleged co-offender is present (as is the case here) there is no conceptual, or evidentiary, difficulty in proving that the co-offender knew that the relevant acts were to be carried out with at least a 'reckless' state of mind."
[224]
Reliance was placed upon the decision of this Court in R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga[2010] NSWCCA 228 ("Chishimba"), said to have been determined consistently with this position.
The decisions of the High Court in LK and Ansari were submitted to be inapplicable, as they involved consideration of Commonwealth conspiracy charges. The joint criminal enterprise here was on the other hand in substance for one or other of the participants in the joint criminal enterprise to sexually touch or have sexual intercourse with a person (who is in fact not consenting) while either knowing them to not be consenting or being reckless as to that fact, irrespective of who that someone was. It was submitted that accordingly "[t]o intend that whoever engaging in the physical acts will know or be reckless as to lack of consent (whomsoever that may be) is not dissimilar to the (conceptually acceptable) case of intending that a third party will be reckless as to a physical element," citing Ansari v R(2007) 70 NSWLR 89; [2007] NSWCCA 204 ("Ansari CCA") at [87] (Howie J) and Ansari at [18] (French CJ).
It was submitted for the respondent that joint criminal enterprise is a more flexible concept than conspiracy, and that agreement for the purposes of joint criminal enterprise should not be assessed through the prism of the requirements regarding agreement for the purposes of conspiracy.
During the hearing Senior Counsel for the respondent accepted that incorporation of inadvertent recklessness into joint criminal enterprise liability in this case had some logical and conceptual difficulties; and remarked on the surprising paucity of consideration of the issue.
The Crown submitted that if the second part of the argument on ground 1 (regarding directions on recklessness) were to be accepted, it could only affect the verdicts on counts 2-7 as counts 8-11 did not rely on recklessness.
[225]
Determination - Directions relating to the joint criminal enterprise
[226]
In relation to counts 2-11 on the indictment, the Crown case depended upon basic principles of joint criminal enterprise. Fundamental to such a basis of liability was the requirement for the Crown to prove beyond reasonable doubt what it was that was agreed upon, this being a crime (whether or not known to be such by the participants). In McAuliffe v The Queen(1995) 183 CLR 108; [1995] HCA 37 Brennan CJ, Deane, Dawson, Toohey and Gummow JJ described it thus at 113-114 (footnotes omitted):
[227]
"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission."
[228]
The principles were confirmed in the judgment of McHugh J in Osland at [73] quoting Tangye at 556-7:
[229]
"(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed."
[230]
As stated more recently in Miller v The Queen(2016) 259 CLR 380; [2016] HCA 30 ("Miller") by French CJ, Kiefel, Bell, Nettle and Gordon JJ at [4] (footnotes omitted):
[231]
"The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus..."
[232]
As confirmed more recently still, by Gordon, Edelman and Steward JJ in Mitchell at [54]-[55] (footnotes omitted):
[233]
"(i) Joint criminal enterprise
The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design, or enterprise). Whether the agreement is expressed in words or inferred 'from the parties' conduct', each party to an agreement to commit a crime will be guilty of the agreed crime and any crime 'within the scope of the agreement'. It is therefore essential to identify what acts and omissions the parties agreed upon. The agreement need not be express and may be an inference drawn from the parties' conduct, but it must be subjectively appreciated by the accused. The scope of such an agreement has therefore been expressed as involving matters that each party subjectively considered. In this respect, 'it is essential to identify what the parties did agree upon and what it was that each contemplated might occur', which requires consideration of whether each party contemplated the criminal acts 'as a possible incident of the execution of their agreement'. But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the 'true position' for nearly two centuries has been that 'if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act'.
Joint criminal enterprise is a principle of primary liability based on a form of agency. The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement. That is, 'if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all'. It is in this sense that joint criminal enterprise is a form of primary liability: all parties are liable as principals in the first degree because those persons who do not physically perform the acts are acting in concert and have the relevant mens rea. Accordingly, the liability of each party is not derivative, but primary. Hence, all those things done 'in accordance with the continuing understanding or arrangement ... which are necessary to constitute the crime' are attributed to all parties to the agreement and 'they are all equally guilty of the crime regardless of the part played by each in its commission'."
[234]
Significant consequences flow from establishing liability this way. In the current proceedings, regarding the alleged events of the Friday night, establishing that the commission of criminal acts was pursuant to a joint criminal enterprise meant that it did not matter that the Crown could not prove which of the three accused was performing each act, and that they were additionally each responsible for the acts of the others done in furtherance of the joint criminal enterprise.
In addition to the requirement for proof of agreement to commit an offence, proof was required of participation in it by the accused at the relevant time, and an offence needs to have been in fact committed pursuant to the agreement (whether or not the person performing that act is criminally responsible for it). In this matter the Crown relied upon the same evidence to prove the agreement, the participation in it by the applicants, and the commission of the sexual offences in furtherance of the agreement.
The fundamental issue between the parties is how the two alleged agreements were required to be described, for the jury to determine whether the Crown had proved beyond reasonable doubt the commission by these applicants of criminal offences pursuant to them. The respondent's position is that as to the physical element of the crime, the Crown was only required to prove an agreement to have sexual intercourse or sexually touch. So much can be inferred from the submissions for the respondent referred to above at [109] and [110]: addressing absence of consent at one level only - whether the complainant did in fact not consent. This was submitted to be all that was required. The directions relied upon by the respondent went to what was said to be the third element of the offences; namely, that the complainant was, in fact, not consenting. These were not directed to the content of the agreement the subject of the joint criminal enterprise, but to proof that an offence was, in fact, committed pursuant to the joint criminal enterprise.
That this was the respondent's position became clear during oral submissions - it was contended that the relevant physical act required to be the subject of the agreement was only to have sexual intercourse. In this sense, on the respondent's case, the words "with or without consent" or "regardless of consent" really added nothing to the only thing that needed to be proved regarding the agreement as to the physical acts of the crime - to have sexual intercourse (or sexually touch).
[235]
61JAggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section, circumstances of aggravation means circumstances in which -
[236]
...
...
...
(c) the alleged offender is in the company of another person or persons
[237]
There is a difference between on the one hand the proposition that liability pursuant to a joint criminal enterprise arises for the acts performed pursuant to it (which is reasonably uncontroversial - the division in the High Court in IL v The Queen(2017) 262 CLR 268; [2017] HCA 27 as to whether it is "acts" or only those acts that constitute the actus reus of a crime that are attributed, may be put aside) and on the other hand determination of what it is that needs to be agreed upon for the joint criminal enterprise to be established. It is the latter which is at issue in this appeal. The extent to which the mental element of sexual intercourse without consent needs to be agreed upon will be addressed further below. But on the fundamental issue of the description of the actus reus of the offence for the purposes of the agreement, the Crown relies upon paragraph [95] of Osland which refers to liability arising "Once the parties have agreed to do the acts which constitute the actus reus of the offence", and submits that the actus reus of the offences under consideration is sexual intercourse or touching.
Putting aside for the moment the aggravating circumstance of commission in company, the actus reus of sexual assault is not merely sexual intercourse, but sexual intercourse without consent. Specifically as to the NSW basic offence of sexual intercourse without consent, David Brown et. al, in Criminal Laws Materials and Commentary on Criminal Law and Process of New South Wales (8th ed, 2025, Federation Press) at 3.3.1 (page 149) include as Box 2, regarding s 61I of the Crimes Act the following:
[238]
"The physical, external or observable element of the crime, the actus reus, will often extend beyond the act of the defendant. The circumstances in which the defendant's act was committed will frequently be a crucial part of the offence definition. For example, from Box 2, above, we can see that the offence of sexual assault requires proof that sexual intercourse took place in a circumstance where consent was not given."
[239]
At 8.3 (page 662) the issue is addressed again:
[240]
"There are two actus reus or physical elements to the offence of sexual assault: the act/conduct being 'sexual intercourse', as expansively defined in s 61HA; and the circumstance component of 'without consent', which is dealt with in ss 61HI and 61 HJ."
[241]
At 8.3.2 (page 663) dealing with "Consent: the circumstance" it is stated that "The second element of the actus reus is the circumstance of the complainant's non-consent. While the issue of 'non-consent' deals with the mind of the complainant it is a circumstance of the actus reus because mens rea deals with the accused's mental state - that is, knowledge in relation to the complainant's non-consent."
These are not propositions particular to the current state of the law in New South Wales. In the report of the Australian Law Reform Commission, Family Violence - A National Legal Response: ALRC Report 114, (November 2010) at 1132 it is stated:
[242]
"25.12 In all jurisdictions the prosecution must prove that sexual penetration took place without the consent of the complainant. These are the physical elements of the offence, or actus reus. In the common law jurisdictions - NSW, Victoria, South Australia and the ACT - the prosecution must also prove that the accused knew that the victim was not consenting or was reckless about whether there was such consent. This is known as the mental element of the offence, or mens rea."
[243]
In David Ormerod and Karl Laird, Smith and Hogan'sCriminal Law (14th ed, 2015, Oxford University Press) at page 820 it is stated, regarding sexual assault (footnotes omitted):
[244]
"It is important to remember that the absence of consent is an element of the actus reus, not an element of defence. As Duff points out, the description of the conduct must be descriptive of the proscribed wrong, and if consent was part of the defence, sexual intercourse would have to be wrong."
[245]
The fact that the actus reus of the charges faced by the applicants includes the absence of the consent of the complainants is not determinative of the fact that the agreement must be described by reference to this, but it is an important starting point. It focuses consideration on whether there is a reason for not requiring agreement as to the actus reus of the crime.
The mens rea of sexual intercourse without consent will also have importance in establishing the method of describing the relevant agreement - both its physical and mental aspects. At the date of the present alleged offences, the relevant legislative provisions were as follows:
[246]
61HE Consent in relation to sexual offences
(1) Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF.
(2) Meaning of "consent" A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3) Knowledge about consent A person who without the consent of the other person (the alleged victim) engages in a sexual activity with or towards the alleged victim, incites the alleged victim to engage in a sexual activity or incites a third person to engage in a sexual activity with or towards the alleged victim, knows that the alleged victim does not consent to the sexual activity if -
[247]
(a) the person knows that the alleged victim does not consent to the sexual activity, or
(b) the person is reckless as to whether the alleged victim consents to the sexual activity, or
(c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
[248]
(4) For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case -
[249]
(a) including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but
(b) not including any self-induced intoxication of the person.
[250]
For counts 2-11 the Crown relied only upon the wholly subjective definitions of knowledge of absence of consent. It did not rely upon the absence of reasonable grounds for believing that the complainants consented.
Detailed consideration of the meaning of recklessness in sexual assault law in New South Wales, in appeals against convictions for offending in contravention of the provision as in force at the same time as relevant to this case but referring to historical developments, was undertaken by Button J (Kirk JA and Lonergan J agreeing) in Lee v R[2023] NSWCCA 203; (2023) 310 A Crim R 170 ("Lee") at [146]-[284] and Adamson JA (Wilson and Faulkner JJ agreeing) in Tuuholoaki v R[2024] NSWCCA 135 ("Tuuholoaki") at [244]-[276]. The concept is always concerned with the subjective thought processes of the accused. As made clear in the majority judgment of the High Court in Banditt v R(2005) 224 CLR 262; [2005] HCA 80, this distinguishes recklessness in the context of the crime of sexual assault from recklessness in other areas of law such as the tort of negligence, and from the objective hue the word may have in ordinary usage, such as indicating conduct that is negligent or careless.
As Lee and Tuuholoaki make clear, recklessness for the purposes of sexual assault in New South Wales is made out where the accused realises there is a possibility the other person does not consent to sexual intercourse but proceeds regardless (sometimes called "advertent recklessness") or where the accused does not consider at all whether the other person is consenting (sometimes called "inadvertent recklessness" and called "non-advertent recklessness" in Lee). Recklessness in some other areas of criminal liability is more demanding. For example murder by reckless indifference is demonstrated by an act or omission done expecting its probable result to be death or grievous bodily harm, a state of mind "comparable" to acting with an intention to kill or to do grievous bodily harm, and in that sense "just as blameworthy": ; at 469;
[251]
"...that the other accused - [the appellant] - was a party to a joint criminal enterprise to commit the offence, and that the offence that was committed was committed pursuant to that joint criminal enterprise.
Now, clearly for the Crown to establish the guilt of [the appellant] in relation to this first count, the Crown would have to prove the requisite state of mind of [the appellant] namely the Crown would have to prove a shared intention with the other accused, [EZ], for [EZ] to have sexual intercourse with the complainant without her consent or regardless of her consent, that is realising that she may not be consenting, and that the events be committed in company.
...
Now, when I say 'intention to commit the crime' I have mentioned to you that on this question of joint criminal enterprise you need to be satisfied that the crime was committed; you may be satisfied that the crime was committed by going back to the elements of the offence I gave you in relation to [EZ] for count 1. You have to be satisfied that [the appellant] was part of the joint criminal enterprise to commit that crime, and the crime was committed pursuant to the joint criminal enterprise..."
[252]
At [101]-[103] Simpson J held that "This complaint as to the directions on participation ought to be rejected. Participation may be proved, where the relevant arrangement or agreement is proved, by evidence of an accused's mere presence at the scene of the crime." Her Honour referred to the complainant's evidence which proved much more actual participation than mere presence, with no dispute as to participation by the appellant (if the Crown allegation was proved). Her Honour noted that KA's case (which the jury clearly rejected) was that he was not present when EZ had sexual intercourse with the complainant. Her Honour thus quoted the High Court decision in Huynhv The Queen[2013] HCA 6; (2013) 87 ALJR 434 ("Huynh") regarding the obligation of a trial judge to direct in a way that addressed the real issues in the case, pertinent particularly to participation in a joint enterprise. Further, as her Honour held at [105], had the trial judge been required to direct more explicitly on KA's participation he would have had to refer to the numerous acts which on the Crown case the appellant did to assist his co-accused, beyond his mere presence.
It was in this context that her Honour stated at [106]-[109]:
[253]
"The complaint as to the absence of direction on the appellant's knowledge of lack of consent ought also to be rejected. The reference to 'shared intention' in the extracted passage from the summing up makes it quite clear that the words that follow apply to both accused.
Again, the state of the complainant's mind was not an issue as between the Crown and the appellant. It was not the appellant's case that he was aware that EZ was having sexual intercourse with the complainant, but believed that she was consenting. The appellant's case was that he was unaware of the sexual intercourse between EZ and the complainant. I repeat, the task of the trial judge is to direct the jury in respect of the issues as they are fought in the trial.
Further, as is the case with respect to the previous complaint, a direction in the terms for which the appellant now contends could not have helped him. It would, again, have been necessary for the trial judge to direct the jury with respect to the specific evidence of the complainant relevant to this issue. It will be recalled that her evidence was that the appellant was present while she was telling EZ that she did not want to engage in sexual activity, and was holding her up as she kept turning her head.
In my opinion, on a fair reading of the directions given, it was perfectly plain that it was an essential part of the Crown case to prove that the complainant was, in fact, not consenting. Any additional direction would have been adverse to the interests of the appellant."
[254]
The resolution of the ground was thus particular to the way in which the case was defended at trial. However her Honour made a number of statements of general principle which are contrary to the respondent's position that the issue of absence of consent needs only be addressed at the level of the commission of the crime in furtherance of the agreement, not the scope of or terms of the agreement. At [85], having analysed the evidence and addresses at trial, her Honour said that the issues in relation to count 1, as it pertained to KA, were:
was there an understanding or arrangement between EZ and the appellant that they (or one of them) would have non-consensual sexual intercourse with the complainant?
if so, was there an act of non-consensual sexual intercourse between EZ and the complainant (on the evidence, an act of forced fellatio)?
if so, did the appellant participate in that act?
At [92]-[93] after quoting Tangye and Osland, her Honour said:
[255]
"The essentials are, therefore:
(1) an understanding or arrangement between two or more persons that they will commit a crime. (The acts constituting the crime may be committed by either or both.);
(2) the commission of the crime by one or other of the parties to the agreement or understanding;
(3) participation by the other party to the agreement or understanding. (Participation may be effected by mere presence at the time when the crime is committed.)
Applying those principles to the present case, the following observations may be made. The crime the subject of Count 1 was sexual intercourse without consent, with knowledge that the complainant was not consenting. The act constituting the crime was forcing the complainant to perform fellatio on EZ."
[256]
At [94] her Honour stated that notwithstanding the age of the complainant, because of the manner in which the case was conducted, an essential element of the crime was the actual absence of consent to the intercourse (to the knowledge of both EZ and the appellant) by the complainant. Her Honour stated:
[257]
"Proof that an act of intercourse is non-consensual and that an accused person knows that the act is non-consensual is not the same as proof that two accused persons agree to participate in a non-consensual act of intercourse. The agreement and the actuality are not coextensive."
[258]
Meagher JA similarly confirmed the dual requirements of agreement to have sexual intercourse without consent, as well as actual absence of consent to the knowledge of the appellant at the time of EZ's act. In considering ground 2, Meagher JA commenced by acknowledging at [7]-[8] that whilst the doctrine of joint criminal enterprise makes parties to an understanding equally liable for the acts that constitute the actus reus of the crime which is the subject of that understanding, it was "also necessary" for the Crown to establish that at the time the acts constituting the actus reus were committed, the appellant had the requisite mens rea. His Honour at [11]-[12] referred to the Crown case as one where the appellant was present and participating in the non-consensual sexual activity by the co-accused, and the fact that it was in that context that "the appellant's somewhat elusive argument in support of ground 2 falls to be considered."
At [16] his Honour confirmed the summing up had made clear that the understanding or agreement referred to plainly concerned the crime of having sexual intercourse with the complainant without her consent. At [18] his Honour stated:
[259]
"However to establish that the appellant was guilty as a party to a joint criminal enterprise to commit that crime, it was necessary that the Crown prove that at the time of the commission of the principal act constituting the crime - sexual intercourse without consent - the appellant knew that the complainant was not consenting or was reckless as to the complainant's consent. That was in addition to its proving that the appellant was party to a continuing understanding with EZ that they would have sexual intercourse with the complainant without her consent, either knowing that to be the position or being reckless as to the fact of consent. Proof of (i) the existence of that continuing understanding, (ii) the commission of that crime and the appellant's participation in it and (iii) his knowledge of the absence of consent was necessary to make him criminally liable for EZ's acts. The fact of that understanding and of the appellant's presence and active participation were relied on by the Crown to establish that the appellant had the mens rea necessary to complete the commission of the crime: Osland at [93]; Likiardopoulos at [19]."
[260]
KA thus confirms a requirement for proof of both an agreement to have sexual intercourse without consent, and the actual engaging in sexual intercourse without consent, pursuant to that agreement.
The decision of the High Court in Rohan does not support the respondent's position. Gageler CJ, Gordon and Edelman JJ described the issue under consideration this way at [1]:
[261]
"This appeal concerns what is necessary to prove that a person is 'involved in the commission of an offence' under s 323(1)(c) of the Crimes Act 1958 (Vic), being where the person 'enters into an agreement, arrangement or understanding with another person to commit the offence'. Specifically, the issue is whether the prosecution must prove that an accused knew or believed, at the time of entering into the agreement, the essential facts that made the proposed conduct an offence, where that knowledge or belief is not an element of the offence itself. The answer is no."
[262]
The respondent was one of three people who supplied cannabis to girls aged 11 and 12, and sexually penetrated and sexually assaulted the 11 year old. It was a criminal offence to supply the drug to a child under 16, to sexually penetrate a child under 12, and a particular type of sexual assault for it to be done to a child under 16. None of these offences included as an element proof of knowledge of the child's age, nor that she was under a particular age.
Victorian legislation had abolished the common law doctrine of joint criminal enterprise and replaced it with a regime describing when a person is "involved in the commission of an offence" including when the person "enters into an agreement, arrangement or understanding with another person to commit the offence": ss 323(1)(c) and 324(C)(2) Crimes Act 1958 (Vic). The law of complicity at common law in relation to aiding and abetting had similarly been abolished, and s 323(1)(a) included, as an aspect of when a person is involved in the commission of an offence, a person who "intentionally assists, encourages or directs the commission of the offence." Section 324(1) of the Victorian Crimes Act provided that if an offence is committed, a person who is involved in the commission of the offence is taken to have committed the offence and liable to the maximum penalty for that offence. Section 323(3)(b) provided that a person may be involved in the commission of an offence whether or not the person realises that the facts constitute an offence.
Although it was argued for the applicants that there were differences between the provision considered by the High Court as most equivalent to joint criminal enterprise at common law and the common law doctrine, there are sufficient similarities for the decision to have a bearing upon this case had it decided an issue equivalent to that raised in these proceedings. However the fundamental difference between the charges in and those currently under consideration is that there was an express legislative intent in connection with the Victorian offence provisions that there be no requirement for knowledge of the age or age bracket of the girls. It was not contentious that for those acts of supply and penetration Mr Rohan had personally performed, the prosecution was not required to prove his knowledge of the girl's age. He had not appealed against his convictions for those offences, and the appellate proceedings concerned only those convictions where he was made liable by virtue of his agreement with the person who performed the act of supply, penetration or sexual assault.
[263]
"If offences require, as an element of the offence, that the person committing the offence have a particular state of mind (eg, knowledge of the age of the person against whom the offence is being perpetrated) then that element of the offence would apply to the required agreement, arrangement or understanding. That is, for example, for a person to enter into an agreement, arrangement or understanding to supply a drug to a child known to be under 18 years of age, that person would need to know the child was under 18 years of age. Where the offences do not require such knowledge, as in this case, no such element of the offence also applies to the agreement, arrangement or understanding."
[264]
Their Honours at [63]-[64] and [68] contrasted the case before the Court, which was concerned with group activity that would be covered by the common law doctrines of acting in concert, joint criminal enterprise and common purpose, with the requirements of s 323(1)(a) and the use in that sub-section of the word "intentionally", and the similarity of that subsection with aiding and abetting and the requirements specified in Giorgianni.
In contrast to the substantive offences considered in Rohan, knowledge of absence of consent is an essential aspect of the counts for which the applicants were convicted. The fact that the legislature has provided for an extended definition of when a person is taken to have known there to not be consent does not change this, but invites further consideration of which, if any, of those extended definitions are compatible with liability based on joint criminal enterprise.
The decisions of the High Court in LK and Ansari are generally instructive as to the process of analysing whether particular legal concepts are capable of combination with one another. This is a well-established discipline. As was said by Wilson, Deane and Dawson JJ in Giorgianni at 506:
[265]
"For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law."
[266]
It is uncontroversial that a principal in the second degree to sexual intercourse without consent, or an accessory at the fact, or aider and abettor, is required to have knowledge of absence of consent, in line with Giorgianni. The Crown conceded such requirement in the proceedings in Carlyle-Watson v R[2019] NSWCCA 226, the contentious issue being whether this had been made sufficiently clear to the jury.
It is also uncontroversial that "Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment even though they are not the primary offenders": Lord Bingham in R v Rahman[2008] EWHC 124; [2009] 1 AC 129 at 145. In many aspects of the criminal law, the informing principle "that there should be a close correlation between moral culpability and legal responsibility" guides development and analysis where there is not clear binding authority assisting the Court (or a requirement to reconsider established authority): see for example Gageler J in Miller at [119], quoting Wilson v The Queen(1992) 174 CLR 313; [1992] HCA 31 at 334. Although his Honour's application of that principle to the concept of extended joint criminal enterprise resulted in his dissent in the outcome in that case, the principle is unassailable.
There are important differences between the principles of accessorial liability and joint criminal enterprise, and further consideration of the compatibility of the statutory definitions of knowledge of absence of consent requires different consideration in the context of a joint criminal enterprise.
Actual knowledge of non-consent is clearly capable of combination with articulation of a joint criminal enterprise to commit the crime of sexual intercourse without consent. In our view, inadvertent recklessness is not. It is not possible for three men to have agreed with one another to not think about consent; at least not in circumstances such as were alleged here of a spontaneously formed agreement. They could only have agreed to not think about consent by turning their minds to the issue. The extremely artificial and hypothetical prospect of people agreeing at one time to have sexual intercourse with someone in the future, and at that future time to not think about consent may be put aside.
[267]
"The Crown's case was that the appellants were participants in a joint enterprise to commit an offence against s 61J. If an appellant had the mental state (in this case knowledge or recklessness as to consent) that would have rendered him guilty of an offence against s 61R if he had been the actual perpetrator of the act, he was equally guilty if he was a participant in an agreement or understanding that the crime would be committed and not he, but another participant, was the actual perpetrator. This is the effect of the principles expounded by McHugh J in Osland at [72] - [95] (see [30] - [34] above). As a result Makasa's [sic: Mulenga's] submission should be rejected."
[268]
In the way the Crown case in Chishimba was advanced at trial and determined on appeal, the concept of inadvertent recklessness had no work to do. The Crown case was that all men in the small room knew that sexual intercourse with the complainant commenced when she was asleep. The convictions were quashed and acquittals entered because of the inability of the evidence to prove this fact beyond reasonable doubt which meant there was inadequate evidence of a joint criminal enterprise: see for example at [109], [117], [134]. Further, as submitted by Mr Game SC, his Honour considered the issue from the specific perspective of a secondary participant.
Although his Honour's decision is not binding, we have considered it closely for the guidance it may offer in the resolution of the current appeal. However the brief discussion of the ground regarding directions on recklessness, the lack of clarity as to whether the impugned direction related to the terms of the agreement or the commission of the crime in furtherance of it, the very different factual scenario before the Court where it was not the Crown case that anyone could have not thought about consent had they known the girl was asleep, the absence of discussion of the problem of demonstrating agreement to commit a crime when a fundamental aspect of it has not been thought about, and the comprehensive and persuasive argument of relevant issues before us has caused us to decide that it should not be followed. Insofar as inadvertent recklessness at least is concerned, there is a fundamental incoherence in combining it with joint criminal enterprise liability in a case such as the present.
In LK it was argued that a conspirator may be guilty of an offence where he and one other conspirator are reckless as to a circumstance of the substantive offence, where recklessness is the fault element relevantly prescribed by the substantive offence. The case arose under the Criminal Code (Cth).
At [67] French CJ said (citations omitted):
[269]
"At common law a reckless state of mind is not sufficient to constitute the mens rea for the offence of attempt. Knowledge of the likely consequences of an act may evidence the requisite intention to commit the relevant offence. But such knowledge is not to be equated with that intention. Similarly, it is not sufficient that an alleged conspirator be reckless as to the existence of an element of the substantive offence - for that kind of recklessness would negate the very intention that is necessary to form the unlawful agreement."
[270]
The plurality made comparison with common law this way at [117] (footnotes omitted):
[271]
"The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law."
[272]
"The prosecution case at its highest was that the respondents intentionally entered an agreement to deal with money whether or not it was proceeds of crime. The matters upon which the appellant relies as providing the factual basis for the inference of intent, namely the respondents' awareness that the money may be proceeds of crime and their agreement to deal with it even if it was, expose the flaw in the analysis. At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK's and RK's intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy."
[273]
However the respondent correctly submits that joint criminal enterprise is a more flexible concept than conspiracy, which at common law and pursuant to the Code has a number of technical aspects inapplicable to joint criminal enterprise at common law, and creates criminal liability by virtue of the agreement. Advertent recklessness is meaningfully different for present purposes from inadvertent recklessness in its capacity to coherently apply in a joint criminal enterprise such as alleged in these proceedings. The legislature has specifically chosen to include mental states less demanding than actual knowledge of absence of consent as attracting liability for sexual assault. We are of the view that the prosecution can, in a trial of the type before the Court, ask the jury to draw an inference from the circumstances proved that the participants must have and did know that the complainants were not consenting, or sufficiently recognised this as a prospect, to demonstrate their agreement that sexual intercourse without the complainants' consent should occur, if they were not consenting.
We are of the view that advertent recklessness is capable of being coherently considered in conjunction with principles of joint criminal enterprise in relation to the charges faced by the applicants. It does not unduly dislocate legal responsibility from moral culpability, and is capable of rational combination. This does not however permit the description of the agreement to commit the crime to be anything other than agreement to have sexual intercourse without consent (including, if appropriate and coherent, an extended definition of knowledge of absence of consent). That is the actus reus of the crime, it is an orthodox way of describing the agreement to commit the crime in joint criminal enterprise cases (as explained for example in KA), and, unlike the element of age in Rohan, knowledge of absence of consent is an element of the offences these applicants were charged with. In Rohan, it would have been contrary to the legislative intent that knowledge of the age of the girls intentionally supplied with drugs and sexually engaged with was not required to be proved against an individual accused, to include in the definition of the agreement the age of the girls. In relation to the commission of sexual intercourse without consent alleged in this trial, it was not anomalous with the elements of sexual assault in New South Wales legislation to require the agreement to be described in a way which recognised mental advertence to and agreement concerning non-consent, by describing its true actus reus of sexual intercourse without consent as part of that which was agreed upon. The decisions of the High Court referred to above at [126]-[129], and , underscore the importance of clear focus on what it is that is alleged to have been agreed upon.
[274]
"... that enterprise was to engage in sexual activity or intercourse with DM and MF, without their consent, knowing they were not consenting or realising they may not be consenting."
[275]
Although principles of joint criminal enterprise may require the agreement to extend to any mental element as well as the relevant actus reus of the offence, that may be overtaken or incorporated by the way the actus reus is described. In the case of murder based on a basic joint criminal enterprise to kill someone, the agreement to kill constitutes the requisite mental element. Participants in the agreement are liable for the act of the principal who has performed the acts in accordance with that agreement. The principal needs to have done the act causing death pursuant to the agreement (that is, with intent to kill), such that a coincidental accidental killing of the object of the agreement would not render the other parties guilty of murder. However the agreement is not necessarily described as an agreement to kill, intending to kill. Throughout the judgments in Osland, the relevant joint criminal enterprise is described as one to kill the deceased (or sometimes to murder him).
In LK French CJ at [57] referred to the common law definition of the elements of the offence of conspiracy by reference "not without some difficulty" to the agreement as the actus reus and the intention to do an unlawful act pursuant to the agreement as the mens rea. In a footnote, his Honour said "As to the inescapable mental element in the actus reus so defined, see the observation of McHugh J in Peters v The Queen(1998) 192 CLR 493; [1998] HCA 7 at 516 [55] referred to below." The actus reus of sexual assault, being sexual intercourse without consent, does not have an inescapable mental element. However agreement with another or others to have sexual intercourse without consent does.
In a case such as the present where the agreement to be proved was an agreement to have sexual intercourse or sexually touch the women without their consent (or her consent in relation to counts 8-11), and the Crown relied on the same evidence to prove the agreement, participation, and the commission of a crime in furtherance of the joint criminal enterprise, there may have been no need to additionally prove agreement as to the mental element of sexual assault. That is because the requisite mental state will need to be referred to in explaining how the Crown endeavours to prove an agreement to have sexual intercourse without consent. However stands as authority for the proposition that the Crown was required to prove this, the matter was not squarely argued before us, and we reach no concluded view about it. Although individual liability arises from realisation of the possibility of lack of consent, and as noted above at [147] Button J said in this may be appropriately described as knowledge of a non-trivial possibility of absence of consent, it may be more important in a joint criminal enterprise case such as the present for the jury to understand that subjective realisation of the prospect that the complainants were not consenting needs to have been tangible enough to found an agreement to have sexual intercourse with them without their consent.
[276]
(i) in using the phrase "with or without" consent, and not "without" consent, in the description of the joint criminal enterprise for counts 2-7 and 10 and 11;
(ii) in not providing any description of the joint criminal enterprise for counts 8 and 9;
(iii) in including inadvertent recklessness as sufficient knowledge of absence of consent in the description of the essential elements of counts 2-7 for all applicants, and 10-11 for Marius Hawell;
(iv) in the consequential inclusion of inadvertent recklessness in the description of the joint criminal enterprise for all offences (as no other definition of "reckless" was provided); and
(v) in the undue focus on the elements of each offence from the perspective of each accused, rather than on the content of the agreement and the participation by each accused in it.
[277]
These wrong directions were material, in that they could realistically have affected the reasoning of the jury to the verdicts of guilty in the trial that was had: MDP at [3], [9], [56], [99]-[104], [106]-[107], [109]-[110].
No point was taken at trial as to the error in these directions. Leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) should be granted because of the materiality of the wrong directions, the seriousness of the charges, and the conceptual complexity of the issues involved with no case law of direct assistance.
Ground 1 for each applicant will be upheld. The verdicts of guilty on counts 2-11 must be quashed. The question of whether to order a re-trial on those counts will turn on the resolution of other grounds of appeal.
[278]
Cross-admissibility of evidence and refusal to separate trials (Grounds 2 and 3 in the Maurice Hawell appeal, ground 2 in the Marius Hawell and Andrew David appeals)
[279]
Directions regarding "state of mind" (ground 4 in the Maurice Hawell appeal, ground 3 in the Marius Hawell and Andrew David appeals)
[280]
On 11 June 2024, before the commencement of the trial, Senior Counsel for Maurice Hawell sought an order pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) seeking separate trials with respect to counts 1-7 (Friday night) and counts 8-11 (Saturday night). This was adopted by the other counsel.
Initially, the application was argued by reference to the asserted inadmissibility of the tendency and coincidence evidence, responsive to the Crown tendency and coincidence notices.
The tendency notices particularised the following (subpar (f) differs in relation to Maurice Hawell):
[281]
"The tendency sought to be proved is his tendency to have a particular state of mind, namely:
[282]
a) An interest in participating in sexual activity (particularly group sexual activity involving more than one male) with females in Newcastle West during 25 - 27 February 2022; and
b) To participate in the above sexual activity whether or not the female participant's were consenting to the sexual activity.
The prosecution also seeks to prove his tendency to act in a particular way, namely:
c) Act on the above interest by participating in sexual activity (including group sexual activity) in Newcastle West during 25 - 27 February 2022;
d) To participate in sexual activity (including group sexual activity) in circumstances where the female participant/s had either refused consent to the activity or where there had been no request for their consent;
e) To persevere with sexual activity (including group sexual activity) in circumstances where a female participant had physically resisted the sexual activity; and
f) To participate in sexual activity without consent in circumstances where a female has already participated in consensual activity with another in the Apartment, and the accused and or others, proceed to attempt to or have sexual activity without consent."
[283]
The evidence to be relied upon included the criminal allegations of DM, MF and MS.
The coincidence notices described the two events the subject of the proposed evidence as: the allegations of non-consensual group sexual activity at the apartment on Friday 25 February 2022 made by the complainants MF and DM, and the allegations of non-consensual group sexual activity at the apartment on Saturday 26 February 2022 made by the complainant MS. Paragraph 3 of the notices outlined the details said to demonstrate the two events as similar. Paragraph 4 stated:
[284]
"The evidence is to be tendered to prove that given the accounts of MF/DM and MS are so similar as outlined above, it is highly likely that they are telling the truth about what occurred in the unit."
[285]
Detailed written submissions opposing the cross-admission of the evidence as tendency and coincidence evidence were filed for all three accused, and for the Crown in support of such admission and use by the Crown. Senior Counsel for Maurice Hawell also addressed the issue of separate trials in his written submissions. The Crown's written submission at [28] stated that "If the evidence of witnesses shows sufficient similarity to be admissible as coincidence evidence, it can be used to prove the two witnesses would not make up those versions independently and by chance."
On 11 June 2024 before her Honour, the Crown indicated there would probably not be a case for the counts to be maintained together if he was unsuccessful in his argument about admissibility as tendency evidence.
While a number of witnesses were called on a Basha inquiry, there were ongoing discussions regarding the tendency and coincidence and severance issues. On 12 June 2024 her Honour queried why the evidence would not be left as a continuing course of conduct or transactional evidence, with tendency and coincidence reasoning to be determined later, after having heard what the witnesses say at trial.
On 13 June 2024, her Honour returned to the severance application and indicated a preference to address tendency and coincidence evidence at the end of the evidence of the complainants and ZG. In hearing submissions as to the severance application, her Honour raised the issue of whether the evidence went to the state of mind of the accused men over the weekend. Senior Counsel for Maurice Hawell submitted that the evidence was not admissible on that basis, and referred to the prejudicial effect of the evidence. This submission was adopted by and expanded upon to some extent by Senior Counsel for Mr David. Counsel for Marius Hawell adopted these submissions, although at some stages seemed to concede that there may be force in cross-admissibility as long as it was not used for tendency reasoning. The Crown Prosecutor made submissions that the evidence was relevant as context evidence, and then adopted the suggestion of the trial judge that the evidence could be considered as transaction evidence and demonstrative of the state of mind of the accused men over the weekend.
On Monday 17 June 2024, her Honour made a formal ruling that the application for the severance of counts 1-7 from counts 8-11 was refused. No reasons were provided at that stage. After the close of the evidence, very shortly before addressing the jury, the Crown Prosecutor indicated that he was not relying on tendency or coincidence evidence and reasoning.
[286]
(a) Putting aside issues of tendency and coincidence, the only basis of admissibility would be as transaction evidence and in this case, the evidence did not constitute transaction evidence. In particular, it did not follow that because the accused had a particular state of mind with respect to episode one (Friday night offences), that he necessarily had the same state of mind for episode two (Saturday night offences). It was not one whole event occurring over a 2-day period (or 24-hour period) and the similarities in the two episodes do not necessarily bespeak a connection.
(b) Pursuant to s 137 of the Evidence Act there was the danger of unfair prejudice hearing all counts together as the jury, irrespective of directions, would conclude that the accused is guilty of everything and/or resort to tendency or coincidence reasoning.
[287]
The trial judge provided at [17] the following reason for refusing the application:
[288]
"It is apparent from the way the Crown proposes to put its case that the 11 allegations are to be treated as one joint criminal enterprise with a common purpose between all three accused. The incidents in question all occurred within a 24-hour period and are to be properly treated as forming a part of a single transaction."
[289]
The law her Honour then referred to was O'Leary v The King(1946) 73 CLR 566; [1946] HCA 44 ("O'Leary"), quoting Dixon J at 577. Her Honour cited the application of this principle in R v Adam[1999] NSWCCA 189; (1999) 106 A Crim R 510 ("Adam"), this Court determining that this basis of admissibility of an integral part of a transaction was not abolished by the introduction of the Evidence Act, and that if such evidence was an integral part of a connected series of events, this would not be tendency evidence. Her Honour quoted from Adam at [30] as follows:
[290]
"The reference by the Commission to Makin v The Attorney General and the quotation from the judgment of Gibbs ACJ in Markby and the references in the Reports to evidence of 'previous misconduct' or 'past misconduct' or 'conduct on some other occasion' indicate, in our opinion, that the Commission was addressing evidence of conduct by an accused person 'in the past', being conduct on some other occasion than the occasion on which the conduct charged occurred, tending to show that the accused had a particular propensity or disposition or inclination. Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person 'in the past' or evidence tending to show that he has a particular 'disposition' or 'propensity' or 'inclination' and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required)."
[291]
Her Honour referred to R v Player[2000] NSWCCA 123; (2000) 217 ALR 578 ("Player"). At [21] her Honour quoted paragraphs [37]-[40] from the judgment of Beazley JA (Grove and Whealy JJ agreeing) in R v Serratore[2001] NSWCCA 123 ("Serratore") regarding the correct admission of evidence of conversations between the appellant and a witness whom he had requested to kill the deceased five months prior to her death, as evidence of his intention. The conversation had been referred to again between the two men about a month before the murder of the deceased. The deceased was aware of it. The time lapse between the request and the murder was held not to make the conversation inadmissible. It was found to be an integral part of the setting of fear that the deceased found herself in, and demonstrated that the appellant reacted to the break up of the relationship with the expression of a violent and murderous intent directed towards her.
Her Honour quoted from R v Mostyn[2004] NSWCCA 97; (2004) 145 A Crim R 304 ("Mostyn") regarding the demonstration, by the appellant's aggression to police, of the state of mind at the time of the alleged offences.
At [23] her Honour held:
[292]
"The evidence in support of the 11 counts is cross admissible not because of any tendency reasoning but because it bore directly on the likelihood of the applicants having been party to a single joint criminal enterprise as alleged by the Crown. Given the ongoing nature of the single joint criminal enterprise over the weekend alleged by the Crown, and the shared common motive in respect of all offences and complainants, it is clear that the Crown is asserting a continuing state of mind on the part of each applicant. That concept does not involve tendency reasoning: Medich v R[2021] NSWCCA 36."
[293]
"To my mind the evidence regarding counts 1-7, the uncharged acts concerning [ZG] and counts 8-11 are capable of demonstrating each accused's state of mind: O'Leary v R[1946] HCA 44; (1946) 73 CLR 566; R v Player(2000) NSWCCA 123; R v Mostyn(2004) NSWCCA 97, in the sense that it could be argued that they are all proximate enough to each other so as to permit an inference that the same state of mind identified continued up until the time of the specific offence..."
[294]
Her Honour indicated that it was the relatively short gap in time between the two sets of offences that arguably points away from the evidence being tendency evidence, but rather evidence of the accused in fact having a state of mind that endured or continued throughout that 24 hour period. Her Honour then quoted paragraphs [363]-[369] of this Court's judgment in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R[2014] NSWCCA 303; (2014) 316 ALR 206 ("Elomar").
Her Honour referred again to the ongoing enterprise over the course of both nights, indicating at [25] that it would be appropriate to direct the jury that the entirety of the relevant evidence that each particular accused under consideration is available to them to be taken into account in respect of their particular counts:
[295]
"...noting it is the Crown case that the joint criminal enterprise is an ongoing enterprise over the course of Friday evening and Saturday evening encompassing all counts from 2-11..."
[296]
Her Honour indicated at [25] that an anti-tendency direction would be appropriate and indicated that there was no unfair prejudice for the purposes of s 137 of the Evidence Act.
The direction provided by her Honour has been quoted in part at [94]-[95] above. Her Honour further explained the use of the evidence this way:
[297]
"Now, the evidence led by the Crown concerning this consensual activity between the accused and the evidence of [ZG] as to what she said occurred to her in the kitchen and then later in the bedroom by males two and three was placed before you as evidence as background to the incident giving rise to the actual charges of 8 to 11 before you.
The Crown's argument is that without that evidence you would not have the whole history necessary to understand the full significance of the incidents upon which each individual charge is based. The Crown argues, as I said just moments before, that this evidence in combination demonstrates and reveals the state of mind of each individual accused over the course of that weekend and at the relevant time of an alleged incident. And that is why that evidence has been placed before you and how the Crown relies upon it as a piece of circumstantial evidence in proof of its charge. However, that is the only reason the evidence is before you and you cannot use it for any other purpose.
Whether you give it the significance, whether you find it, and whether you can give it the significance that Crown places on it is a matter for you, but that is the relevance in your deliberations. In particular though you must not use that evidence to reason that because the accused has behaved in a certain way on a particular occasion, he must have behaved in that or a similar way on the occasion giving rise to the charge.
You must not use that evidence to reason that the accused is a type of person who would commit the offence with which he has been charged, and you cannot punish the accused for other conduct attributed to him by finding him guilty of the charge in the indictment on that basis alone. That is not the Crown's argument, and it would be contrary to law and your duty as a juror to use the evidence for a purpose other than the specific basis relied upon by the Crown."
[298]
Further, at a later point of the summing up her Honour stated that as the Crown case was based largely or exclusively on a single witness for each particular count, it was important to be satisfied that the particular complainant under consideration is an honest and accurate witness before the jury could convict. Her Honour then referred to aspects of the evidence that the Crown relied upon to support the accounts of the complainants, this including "the evidence of the state of mind of each accused over that 24-hour period."
[299]
It is common ground between the parties that the standard of appellate review in relation to the issue of the admissibility of the evidence is the correctness standard: see Steven Moore (a pseudonym) v The King[2024] HCA 30; (2024) 98 ALJR 1119 at [3]. As noted earlier, the respondent agreed that the real issue with severance was the correctness of the decision regarding cross-admissibility.
The essential starting point for the applicants' submissions was that her Honour erred in referring to a single joint criminal enterprise. At no point in the trial did the Crown Prosecutor allege a single joint criminal enterprise. He specifically informed the trial judge that it was the Crown case that there were two joint criminal enterprises alleged, one on each night. As made clear in the discussion above of ground 1, the summing up referred to two separate joint criminal enterprises, each commencing at a particular time. The joint criminal enterprise for counts 2-7 was said to have commenced on the Friday night when the lights were turned off and the complainants were pushed on the bed. The joint criminal enterprise on the Saturday night was alleged to have commenced when the word "threesome" was said and MS said "What, no."
It was submitted for the applicants that the erroneously described single and continuing joint criminal enterprise was the central and overriding reason which justified characterising counts 1-11 as "transaction evidence" thus enabling the Crown to allege an "ongoing state of mind" held by each accused.
It was submitted that her Honour's reasoning at [23], in holding that because of the "ongoing nature of the single joint criminal enterprise over the weekend alleged by the Crown" the "continuing state of mind" alleged did not involve tendency reasoning, directly adopted the language at [345] of Medich v R[2021] NSWCCA 36; (2021) 390 ALR 398 ("") where Hoeben CJ at CL said:
[300]
"The evidence in support of the two counts was cross admissible not because of any tendency reasoning, but because it bore directly on the likelihood of the applicant having been party to the single joint criminal enterprise as alleged by the Crown. Given the ongoing nature of the single joint criminal enterprise alleged by the Crown and the shared common motive in respect of both offences, it was clear that the Crown was asserting a continuing state of mind on the part of the applicant. That concept did not involve tendency reasoning..."
[301]
The submissions for the applicants contended that the reasoning in Medich cannot be extrapolated to this case, as it involved a single joint criminal enterprise to kill the deceased and put pressure on his wife to settle the court disputes to get the money back, which carried on for approximately one year.
It was submitted that the reference to the "same state of mind identified" in paragraph [24] of the severance judgment must be a reference to the "continuing state of mind" referred to in paragraph [23], demonstrating inclusion of the same misunderstanding of the Crown case expressed at [17] and [23]. It was submitted that accordingly the consideration of counts 1-11 and the ZG evidence as "transaction evidence" was infected by the same fundamental problem of mischaracterisation of the Crown case as a single and continuing joint criminal enterprise.
The decisions cited at [24] of her Honour's judgment; namely, O'Leary, Mostyn and Player, in support of the determination that the evidence established a continuing state of mind, were submitted to differ from the present case in a number of ways. This included the nature of the evidence in each case, and because the evidence relied upon to establish the continuing state of mind did not include other charged acts.
Insofar as her Honour referred to Elomar in support of her Honour's finding that the evidence could be viewed as demonstrating an enduring state of mind (severance judgment at [24]) it was submitted that the evidence did not support such a state of mind as there characterised, where the Crown alleged an enduring state of mind that favoured militant Islamic Jihad: Elomar at [369]. The current matter was submitted to be not based on the establishment of a belief. Reference was made to the decision of the Victorian Court of Appeal in Parachoniak v The Queen[2017] VSCA 347, expressing the view that the reasoning in Elomar should be confined to cases involving states of mind in the nature of religious or political (or similar) kinds of beliefs.
It was submitted that the provision of context was not a sufficient basis for cross-admissibility when the prejudice that would flow from the Saturday night allegations being taken into account for the Friday night allegations was concerned, as the incidents as alleged were so different. It appeared to be common ground that the Crown case was stronger in connection with the Saturday night allegations.
[302]
Determination - Severance and cross-admissibility of evidence
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.
[305]
The requirement for evidence to be relevant before it is admitted is contained in s 55 of the Evidence Act which defines relevant evidence as "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -
[307]
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
[308]
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
[309]
**Note - **
The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless -
[312]
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
[313]
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
[314]
(1A) To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(2) Subsection (1) (a) does not apply if -
[315]
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
[316]
Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
[317]
Section 101 of the Evidence Act provides that in a criminal trial tendency or coincidence evidence cannot be used against the accused unless the probative value of the evidence outweighs the danger of unfair prejudice. Section 137 of the Evidence Act mandates the exclusion of evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the accused.
Her Honour's statement that the evidence was admissible to support a single continuing joint criminal enterprise over the two nights was clearly incorrect. This was not the Crown case. This statement by her Honour cannot be viewed as a slip - it was stated five times: in paragraph [3], [17], twice in [23] and in [25]. The direct reliance on Medich and use of the terminology from that judgment, which provides detailed analysis of the admissibility of evidence pertaining to two counts arising from a single joint criminal enterprise, confirms the same.
As to the respondent's contention that the decision to permit the cross-admission of the evidence was nonetheless correct, we are of the view that the principle confirmed in O'Leary (and its application in Player and Mostyn), relied upon by her Honour, and by the respondent, does not support this use.
Mr O'Leary was convicted of the murder of his co-worker and sentenced to death. The two men worked in a timber mill. Along with a number of co-workers they spent a Saturday afternoon and evening heavily drinking, at a hotel and at their camp, with the appellant assaulting a number of men quite seriously, including in unprovoked circumstances, and on one occasion aiming a blow at the deceased. The deceased was found moribund in a cubicle on the Sunday morning, having been violently assaulted. He had been struck eight or nine times to the head after which kerosene was poured on him and his clothes set on fire. The appellant was found in possession of a bottle which could have been the cause of the blows to the head of the deceased.
[318]
"All the assaults in question were incidents of a drunken orgy on the same day, begun at Penola, continued at Kalangadoo and at the camp where the man lived. Evidence that the accused had been drinking during the day and evening of 6th July and early hours of 7th July was admissible to show the probability that he would attack another man in a fit of drunken fury. Evidence that, on the day and the night of the killing of Ballard, he actually attacked particular fellow employees without cause is also evidence which goes to show the probability that he would attack some other fellow employee. Such evidence puts the act of attacking Ballard in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night. It is evidence of 'facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.' - per Dixon J. in Martin v. Osborne."
[319]
Rich J explained the reasons for the admissibility of the evidence at 576:
[320]
"... on the ground that it forms part of the circumstances of the crime, including the drunken condition of the prisoner, how he reached that condition, how long it continued and how, while in that condition, he was behaving. His violence, the fact that he exhibited this violence on slight or no provocation, and all the circumstances, form inseparable features of a transaction consisting of connected events."
[321]
Dixon J at 577 held that the evidence was admissible:
[322]
"...because, from the time on Saturday 6th July when the prisoner and the party with him came under the influence of drink right up to the conclusion of the scene in the early hours of the following Sunday morning in the presence of the deceased's body lying in front of the huts, a connected series of events occurred which should be considered as one transaction. The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder."
[323]
"The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide."
[324]
Examples were provided by his Honour of other cases of the admission of "connected incidents of one transaction".
Williams J stated at 582:
[325]
"It is evidence of certain significant incidents which took place in a series of connected occurrences which commenced with the drunken orgy on the sixth of July and concluded with Ballard's death in the early morning of the seventh. The murder occurred in in an isolated camp, so that it is highly probable that it was committed by one of the inhabitants. The fact that the appellant alone of all these inhabitants was in the course of the orgy committing acts of violence and threatening violence must have in these circumstances probative value as making it logically probable that he was the man who assaulted Ballard. It is therefore evidence of facts relevant to prove the main fact that is to say the identity of the assailant and as such, as indicated in the cases cited by my brother Dixon, is admissible on ordinary principles."
[326]
In Player, the appellant had been convicted of maliciously damaging a shop window when in a drunk and aggressive state. The case against him was circumstantial. The "transaction evidence" involved observations of two security guards who worked nearby and ran outside at the sound of the breaking glass, seeing the appellant within minutes kicking over bins and "karate chopping" a "For Sale" sign within 100m of the shop window he was convicted of damaging. There was no one else in the street.
Priestley JA, with whom Foster AJA and Smart AJ agreed, answered the case stated from the District Court, questioning whether there had been error in admitting the evidence, negatively. The evidence was admissible under the principle in O'Leary, approved in Adam, rather than needing to meet the requirements for admissibility of tendency evidence. It was held at [17]: "The smashing of the window was part of the same connected series of events, namely 'a drunken, aggressive and destructive rampage in the early hours of Saturday morning'."
Mostyn was an appeal against conviction for domestic violence offences against the appellant's wife which involved a number of assaults and threatening her with a rifle. The assaults and threats continued over a period of about three hours until the arrival of the police, except for a period when she drove from the house, requiring to return to use the toilet. The "transaction evidence" related to conduct and words of the appellant towards police who arrived at the property after the commission of the offences including the appellant pointing the rifle at police and threatening the police to "back off or I'll kill you". The complainant's account included an assertion that at the time of the assault upon her, the appellant said if she called the police he would shoot her and then shoot the police. The complainant was hiding in a shed when the police arrived and the appellant threatened them, this not long after she had seen him walk past the shed looking for her, armed with the gun.
In holding that the evidence was admissible, McColl JA (with Studdert and Howie JJ agreeing) stated that the evidence of the appellant's subsequent aggressive behaviour towards the police was relevant to the appellant's state of mind at the time of the alleged earlier assault on the complainant and as transaction evidence.
[327]
"At common law, evidence of conduct that forms part of a relevant transaction ('transaction evidence') will itself be relevant because 'without [evidence of such conduct] the transaction of which the [fact in issue] formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event': O'Leary per Dixon J at 577."
[328]
As can be seen, the evidence relied on as "transaction evidence" in O'Leary, Player and Mostyn occurred in very close temporal proximity to the charged offence. These situations involved essentially unbroken or continuing demonstrations of the accused person's conduct, directly relevant to the facts in issue.
In the present case, the evidence concerns the events of two separate evenings, with an intervening day including having breakfast, sightseeing and so on. The Crown alleged two discrete joint criminal enterprises which commenced at specific moments; when the complainants were pushed on the bed on the Friday night and on the Saturday night, involving a different complainant, when the word "threesome" was said and she said "What, no." There was not only not one single joint criminal enterprise, there was not one "transaction". The events of each night did not form an integral part of the events of the other night, such that each could not be truly understood isolated from the other, nor appearing as unreal and not very intelligible if not presented jointly. The evidence was not admissible on this basis as it was not relevant this way.
The decisions referred to by her Honour where the relevant conduct was separated further in time do not support cross-admissibility as demonstrating a relevant state of mind. The decision of this Court in Serratore (see above at [224]) has no bearing on the issue. Nor does the decision of this Court in Medich support the cross-admissibility of evidence relating to the two nights in this case. Mr Medich was charged with two counts, tried jointly. These were the murder of Michael McGurk on 3 September 2009 (count 1) and the intimidation of Kimberley McGurk with the intention of causing fear or harm on 8 August 2010 (count 2). It was not controversial that the applicant's friend Fortunato Gattellari had arranged both crimes either directly or indirectly. It was the Crown case that he had done so at the instigation of the applicant. The Crown relied on a single joint criminal enterprise with the same motive of the applicant's soured relations and business dealings with Mr McGurk, and resulting view that significant amounts of money and property had been wrongly acquired by Mr McGurk, and subsequently his estate, from him. The joint criminal enterprise alleged was to kill the deceased then place pressure on his wife to settle complicated court disputes in order to recover millions of dollars the applicant believed he was owed by the deceased.
[329]
"A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a 'tendency' to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning."
[330]
The relevant evidence concerned the applicant's attendance in 2001-2002 at a camp in Pakistan, the principal purpose of which was to train militant Islamists to fight in the conflict with India over Kashmir. The Court found that such evidence was not evidence of tendency, but could provide the foundation for a conclusion or inference that, at the time he attended the camp, he in fact had the state of mind that he supported violent Islamic Jihad, from which it could reasonably be inferred that he continued to have that state of mind up to and beyond the offence period for the conspiracy to do acts in preparation for a terrorist act or acts in 2004.
In the current proceedings, the state of mind the Crown was required to prove against each applicant in relation to the counts arising from the Friday night was his knowledge that the two complainants were not consenting, or realisation that they may not be consenting, and agreement nonetheless with the other two or three men that sexual intercourse should be had with the two women, thus coalescing into a joint criminal enterprise to have sexual intercourse with DM and MF without their consent. There was evidence available to the Crown in relation to the events of Friday night indicating that the three applicants were keen to engage in group sexual activity. There was no need to rely on the alleged occurrences of Saturday night to make this clear. To convert that enthusiasm or state of mind into the one the Crown was required to prove, by using the events of Saturday night, the jury would have had to reason that the applicants also knew MS was not consenting to sexual activity or realised the prospect of this, and were nonetheless in agreement with the other two men that sexual intercourse should be had with her, thus coalescing into a joint criminal enterprise to have sexual intercourse with MS without her consent. The jury would have had to reason that Mr David and Maurice Hawell each knew that ZG was not consenting to sexual activity or realised the prospect of this, and was nonetheless prepared to have sexual intercourse with her anyway. The reverse applies in relation to the putative relevance of the Friday events to the state of mind on the Saturday night.
Such consideration could only be engaged in by invoking tendency or coincidence reasoning. There was no need in this case to present for the jury's consideration an intermediate state of mind, either "to seek out experiences or opportunities to engage in group sex with females with or without their consent" as the trial judge described it to the jury, or "to have group sex with women come what may" as submitted by the Crown in this Court.
[331]
Unreliability direction given in respect of the evidence of Matthew Anoih (ground 5 in Maurice Hawell appeal and ground 4 in Andrew David appeal)
[332]
By ground 5 of his notice of appeal, Maurice Hawell contends that:
[333]
"The trial miscarried as a result of the unreliability direction given in respect of the evidence of Matthew Anoih".
[334]
Andrew David raises the same argument by his ground 4 and adopted the submissions of Senior Counsel for Maurice Hawell while advancing some additional points relevant to the issue. Because of the position taken on the issue by trial counsel, Marius Hawell did not seek to advance this ground of appeal.
Matthew Anoih was an important witness. He was one of the men who attended the buck's weekend and was present in the apartment at relevant times. He was involved in consensual sexual activity with MF. He was present or nearby during some of the allegedly non-consensual activity although precisely when and where was either unclear or the subject of conflicting evidence and submissions at the trial. Mr Anoih was not charged with any offence arising out of the events and was called as a prosecution witness, although the Prosecutor was granted leave to cross-examine him.
Before the closing addresses commenced, the Prosecutor applied for a direction under s 165(1)(d) of the Evidence Act in relation to the evidence of Mr Anoih and Zaid Haddad "where it's been suggested that both those witnesses were criminally - certainly concerned with allegations of unlawful acts." Trial counsel for Maurice Hawell objected strongly to a s 165 warning relating to Mr Anoih's evidence. Counsel for Mr David objected to a direction relating to Mr Haddad but did not oppose the warning in relation to Mr Anoih. Counsel who appeared for Marius Hawell actively supported the direction in relation to the evidence of Mr Anoih. Both counsel for Marius Hawell and the trial judge observed that Mr Anoih was "a very lucky man", presumably a reference to the fact that the witness had not been charged with any offence arising out of the events. The Prosecutor did not press the application in relation to the evidence of Mr Haddad but maintained that a warning should be given in relation to Mr Anoih's evidence.
The trial Judge decided to provide a legal warning that Mr Anoih's evidence fell into a category that the law recognises may be unreliable. The jury was directed as follows:
[335]
"Now, in relation to the witness Matthew Anoih, it is also important to remember that you are aware that it is a Crown case that he was one of the four involved in the middle room on the Friday night, that he is one of those four men involved in sexually assaulting the complainant. In these particular circumstances, it's incumbent upon me by law to give you certain warnings and directions concerning this evidence.
They are given in cases in which a Crown relies upon the evidence of a witness with such a prospect of being criminally involved in the case. They are not given in this case because of any view which I have informed or which I have formed concerning the evidence of that witness. And you also must remember that he is not on trial. It is the three accused and not him, so whether he was charged or whether he was not charged, and the reasons for that decision, is it completely irrelevant to your role in this trial. Your role is to determine whether the Crown has proven the guilt of the three accused facing the trial beyond reasonable doubt, and not Matthew Anoih.
But the need to give such [a] direction arises because the Courts have over the years a great deal of experience concerning the reliability of evidence given by such a witness. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that evidence is always unreliable. My purpose in giving you this direction is only to warn you that the evidence of such a witness may be unreliable, and for that reason, you must approach that evidence with considerable caution in the way that I will shortly outline.
But there are many reasons why the evidence of such a person may be unreliable, and they may probably be very common sense ones to you after listening to the submissions and the evidence in this trial. But they include motives, for example, of hostility, of dislike, of revenge, or a desire to minimise their own role and to implicate others, a fear of being prosecuted. And experience has shown that once such a witness has given a version, he or she may feel locked into that version, even if it contained inaccuracies or even if it was substantially untrue.
Now, the Crown submitted that you would not accept his account as to what occurred on Friday night overall and would not find him to be a credible or reliable witness and pointed to various aspects of his evidence that the Crown said was wanting. Mr Corish and Ms Hall of senior counsel also submitted that his evidence was wanting and unreliable in various respects, and Mr Portello of senior counsel has pointed out to you various aspects of his evidence that are consistent with the evidence of Mr Maurice Hawell and also even of the complainant, [MF]. For example, the calling out of, 'Where's Matt?' So in assessing the evidence of Matthew Anoih, you must remember the warnings and the directions I've just given you and the submissions made by all counsel as to his evidence. But once again, ladies and gentlemen, that assessment is a matter for you."
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence--
[338]
...
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
...
[339]
(2) If there is a jury and a party so requests, the judge is to--
[340]
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
[341]
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
...
[342]
At the trial, Senior Counsel for Maurice Hawell submitted that the direction should not be given because Mr Anoih was not "a witness [who might] be reasonably supposed to [have been] criminally concerned in the events" and because his evidence supported the applicant's case, a matter which amounted to "good reasons" not to warn the jury pursuant to s 165(3) of the Evidence Act. He submitted that this was not a case where the jury would overestimate the value of relevant evidence, part of the rationale for such a warning, or one where it was appropriate to warn the jury that Mr Anoih was an accomplice who might have reasons to minimise his involvement in the criminal activity while exaggerating the involvement of others, including the accused.
[343]
Counsel for Maurice Hawell submitted in writing that the direction under s 165(1)(d) relating to Mr Anioh's evidence constituted a wrong decision on a question of law and/or amounted to a miscarriage of justice because Mr Anoih's evidence did not implicate the applicant and in some respects was favourable to him. It was also submitted the direction should not have been given because, using the language of Proud v R (No 2)[2016] NSWCCA 44 at [73], the prosecution disputed Mr Anioh's evidence and did not rely on it in its case against the applicant.
Counsel referred to the following parts of Mr Anoih's evidence which supported the applicant's case in relation to count 1:
[344]
(1) That Maurice Hawell came to the door of bedroom two while MF and Mr Anoih were having sex. This account coincided with Maurice Hawell's evidence and diverged from the evidence of MF that Maurice Hawell came to the door after she and Mr Anoih finished having sex.
(2) That Maurice Hawell stood at the door of bedroom two and did not enter the bedroom when the conversation took place. This also supported his evidence that he never entered that room and contradicted MF's evidence that he did so.
(3) That, contrary to her evidence, MF did not pull a blanket up over herself.
(4) That Maurice Hawell did not reach down and put his hand on MF's thigh or attempt to do so. This supported his denial of committing this act and contradicted MF's evidence that Maurice Hawell reached down and put his hand "on my thigh, like up near my groin."
(5) That, contrary to MF's evidence, Maurice Hawell did not say "Can I join you and Matt?" to which MF said, "No".
(6) That Maurice Hawell indicated to Mr Anoih that DM was interested in some form of group sex, asking "Hey guys, do you want to have a threesome? [DM's] keen too". This generally supported his evidence that he asked, "Does she want to have a foursome orgy?" and was contrary to MF's evidence that words to that effect were not said.
(7) That MF was open to the prospect of engaging in group sex, by saying to Mr Anoih in response to Maurice Hawell's proposal "It's up to you". This coincided with his evidence that MF said to Mr Anoih, "I'm down, but up to you" and was contrary to MF's denial of saying that and her evidence that she said "no".
(8) That, contrary to MF's evidence, Maurice Hawell did not say "I'm a better root than Matt" or anything to that effect. His evidence on that issue was that he said something like "I'm good at having sex".
[345]
Maurice Hawell also submitted Mr Anoih's evidence supported his case on counts 2-7. Reference was made to items (4)-(8) above, and to the following parts of his evidence:
[346]
(1) That he and DM entered bedroom two together while the lights were on following the conclusion of the consensual sex between MF and Mr Anoih. This accorded with Maurice Hawell's evidence and contradicted part of DM's evidence.
(2) That DM was half naked, wearing something around her waist at the time, an assertion which supported Maurice Hawell's evidence (although this seemed to relate to a different time).
(3) That Maurice Hawell and MF started kissing, and DM positioned herself to give Mr Anoih oral sex as opposed to MF and DM being "pushed onto the bed" as DM asserted. While Maurice Hawell did not give evidence on this subject in terms, he gave evidence that he shuffled closer to MF and that she "grabbed my penis and performed oral sex on me."
(4) That Mr Anoih observed a seemingly consensual sexual encounter between Maurice Hawell, Andrew David, MF and DM during which the lights were on. Again, this coincided with Maurice Hawell's version and contradicted the evidence of MF.
(5) That MF did not ask Mr Anoih, "Can you get your friends to stop?", which contradicted DM's evidence that she asked Mr Anoih, "Can you get your friends off me?".
(6) That while he was in bedroom two, Mr Anoih did not see anyone kneeling on the shoulders of MF or DM or sitting on their faces which was at odds with the evidence of both MF and DM.
(7) That Mr Anoih did not see anything occurring in bedroom two that "gave him any concerns" that the complainants were not consenting, that neither appeared to be distressed and that each appeared to be "participating in the sex".
(8) That it was not correct that everybody came out into the loungeroom and went back into the middle bedroom to engage in further sexual activity where the lights were turned off and MF and DM were pushed onto the bed. Again, this confirmed aspects of Maurice Hawell's evidence.
[347]
It was accepted that there were inconsistencies between the evidence of Mr Anoih and that of Maurice Hawell, but submitted that those differences did not undermine Maurices case. For example, he denied hearing MF say, "Where's Matt?" at all, whereas Mr Anoih said he heard MF ask that question when he was not in the bedroom and that this prompted him to go to the door of the bedroom and ask if she was okay (to which she replied "Yes, I'm okay"). Even if Mr Anoih's evidence were accepted over that of Maurice Hawell on such issues, it remained inconsistent with the accounts given by DM and MF and cast a reasonable doubt over the prosecution case on non-consent and/or knowledge of non-consent. Counsel relied on the evidence in which Mr Anoih denied that MF asked him, "Can you get your friends to stop?" or that he called his friends. Reliance was also placed on his observation that MF "seemed to be fine, enjoying it" and that nothing caused him to think that either DM or MF was not consenting.
Maurice Hawell submitted that he was entitled to an acquittal on count 1 if the jury acted on either his evidence or that given by Mr Anoih about the events of the Friday night. The warning was not appropriate because Mr Anoih's evidence was favourable to the applicant and exculpatory of him. Reliance was placed on cases such as R v Salama[1999] NSWCCA 105 at [87] (Kirby J); R v Rose(2002) 55 NSWLR 701; [2002] NSWCCA 455 at [297] and R v Ayoub[2004] NSWCCA 209 at [16] (Howie J).
Maurice Hawell emphasised that the direction went so far as to tell the jury that the evidence of a witness like Mr Anoih may be unreliable because of various motives including "hostility, of dislike, of revenge, or a desire to minimise their own role and to implicate others, a fear of being prosecuted" none of which was put to the witness in cross-examination. It was submitted that it was inappropriate and unfair to suggest that the witness may have sought to minimise his own role for fear of being implicated in the alleged sexual assaults when such a motive was never put to him.
[348]
"HER HONOUR: Are you his barrister?
VUU: Yes.
HER HONOUR: You've given him advice as to what--
VUU: I have.
HER HONOUR: As to what?
VUU: As to his right against self-incrimination; not to answer questions that may tend--
HER HONOUR: Well why would his answer lead to self-incrimination?
VUU: Your Honour, I can explain - well, first I should announce my appearance. My name is Vuu, V-U-U. I appear for Mr Anoih. I also appeared at the earlier pre-trial voir dire of Mr Anoih and it's my recollection that there was a conversation that has not been led by the Crown. That has been alighted [sic] and what has happened is that we've jumped forward in time and the question has been put to my client about when he next saw one of the accused. Now, in that context I say that there may be a tendency that, under s 1281--
HER HONOUR: It's not your objection to take though.
VUU: It's not but he--
HER HONOUR: This is the whole thing. You can give him advice, Mr Vuu--
VUU: Yes.
HER HONOUR: --but you do not argue it for him.
VUU: I do not argue it for him, your Honour, but I'm trying to explain why I apprehend that that objection has been taken by my client and its simply this. I do not know, neither does my client, what the Crown case is, what the defence cases are and, to the extent that I do know something, it is simply that there has been a form of accessorial liability or extension of joint criminal enterprise has been pleaded against one or more of the accused. If my client gives the evidence that I apprehend he will give that he gave in the pre-trial voir dire--
HER HONOUR: Which was what?
VUU: Which was simply that, as I understand it, that he went back into the room. Certain things occurred in that room and that he was present in that room.
HER HONOUR: Mr Vuu, your client hasn't been charged with any of this and this account has been given on several occasions and he has not been charged at all with an offence.
VUU: Yes, your Honour, I accept that but the point I am trying to get at, your Honour, or the nub that I'm trying to get at is that, put bluntly, I do not know where this is going to go. I do not know where the cross-examination is going to go but if there is to be any suggestion, I cannot predict if there is going to be a suggestion that he is somehow involved - regardless of whether or not there's a charge against him today--
[349]
The following day, the exchange continued with Mr Vuu apologising for some reason. The trial Judge said she had reviewed the evidence and "it would have been difficult to ascertain on the evidence that he gave on the inquiry that it would raise a reasonable prospect of him ... or the wording of s 128 that it would have been a criminal offence ...". The objection was not pressed and no certificate under s 128 was provided to the witness. Maurice Hawell relies on these exchanges in support of the contention that the witness did not fall within the category of witness whose evidence should be subject to a warning under s 165(1)(d).
Again, Maurice Hawell relied on the submission made at the trial where Senior Counsel argued that Mr Anoih could not reasonably be supposed to be criminally concerned in the events, and highlighted that MF testified that Mr Anoih did not come into bedroom two during the group sex until she called out to him and gave no evidence of any criminal conduct engaged in by the witness. In relation to counts 2-7, MF's evidence was that all the sexual activity she engaged in with Mr Anoih was consensual.
Maurice Hawell submitted that the directions constituted both an error of law and a miscarriage of justice and that no adequate reasons were given to reject the submissions made at trial that (i) the witness did not fall within the relevant provision, and (ii) even if he did, there were "good reasons" not to provide a warning to the jury in the circumstances. It was submitted that House v The King(1936) 55 CLR 499; [1936] HCA 40 error was established in the failure to take into account a relevant consideration, namely "the good reasons proffered by Senior Counsel [at trial] for not giving the direction".
[350]
Senior Counsel for Andrew David adopted the submissions made on behalf of Maurice Hawell and noted that, while Senior Counsel for Mr David did not object to the prosecution's application for a direction under s 165 during the trial, the objection was properly made by Senior Counsel on behalf of Maurice Hawell.
Reference was made on appeal to the same parts of the evidence referred to by counsel for Maurice Hawell. It was submitted that, if Mr Anoih's evidence was accepted, the jury would have been left with a reasonable doubt as to the applicant's guilt. The evidence undermined the prosecution case on the issue of consent and raised a doubt as to whether there was an agreement to sexually assault MF and DM knowing they were not consenting. It was submitted that significant prejudice was created by providing the jury with a warning under s 165(1)(d) in view of the materiality of Mr Anoih's evidence.
[351]
The respondent submitted that the decision to provide a s 165 warning was a discretionary decision and that no House v The King error was established. It was submitted that the decision to give the direction, including the determination under s 165(3) as to whether there were good reasons to refrain from doing so, did not require reasons, and that such reasons could be gleaned from the directions given in the summing up: see R v Fernando[1999] NSWCCA 66 at [106]- [107] and R v Beattie(1996) 40 NSWLR 155; (1996) 89 A Crim R 393 at 160.
The respondent suggested "it is plain" that the trial judge considered Mr Anoih to be a witness who might reasonably be supposed to have been criminally concerned in the relevant events within the meaning of s 165(1)(d). Attention was drawn to the exchange with counsel for Marius Hawell when the trial judge remarked that "Mr Anoih was a very lucky man, wasn't he?". Her Honour told the jury that she was providing a direction "given in cases in which a Crown relies upon the evidence of a witness with such a prospect of being criminally involved in the case". It was also apparent that the trial judge was not satisfied that there were "good reasons for not doing so" under s 165(3). The respondent submitted that her Honour's reasons for that conclusion appear to include that "a lot of his [evidence] was also minimising his own role to keep himself out of that room to the last minute". The respondent also relied on the trial judge's observation that the position taken on behalf of Marius Hawell "may undermine your submissions, Mr Pontello [Senior Counsel for Maurice Hawell at the trial]."
[352]
(1) MF gave evidence that Mr Anoih was in the room when the non-consensual group sex was occurring.
(2) Maurice Hawell gave evidence that Mr Anoih was in the room at the time when he, Andrew David, MF and DM were having what Maurice Hawell believed to be consensual sex.
(3) The prosecution case was that Mr Anoih went into the bedroom at the time that sexual activity with MF and DM was taking place and that he was involved in that non-consensual sexual activity with the three others. Of course, Mr Anoih rejected that version of events.
(4) With respect to the evidence of MF that Mr Anoih was in the room at the time of the non-consensual group sex, Senior Counsel for Maurice Hawell addressed the jury that "on that version of events Matthew Anoih is actually in on the alleged criminal behaviour, or at least acquiesces or turns a blind eye to that behaviour." However, this submission attempted to highlight the peculiarity of the suggestion that Mr Anoih engaged in criminal conduct but was later captured on CCTV at The Cambridge Hotel kissing MF (along with communications about MF possibly staying over at the apartment that night).
[353]
The respondent submitted that "[o]ne could fairly characterise [Mr Anoih's] evidence as minimising his own culpability by not placing himself in the room at the time of the group sex acts while implicating Maurice and Mr David in group sex activity without involving him". That version was said to be inconsistent with Maurice Hawell's account and with what is said to be MF's "attraction to and interest in" Mr Anoih specifically. It was put that the exchange with counsel extracted above at [296], did not mean that the trial judge had "some kind of indelible doubt" that Mr Anoih was criminally involved.
The respondent argued that the direction given by the trial judge was fair and that no legal error was established in her Honour's discretionary decision to warn the jury about the witness's evidence. It was submitted that it was open to the trial Judge to conclude that there were no good reasons for not giving the direction, particularly in circumstances where Marius Hawell supported the Prosecutor's application and where the direction was not opposed by Senior Counsel for Mr David. It was submitted that the trial judge modified the "standard direction" and fairly summarised the different arguments.
The respondent relied on the "materiality threshold" discussed by the High Court in Brawn v The King[2025] HCA 20; (2025) 99 ALJR 872 and MDP v The King. Reliance was placed on the fact that no further direction was sought after the warning was provided in the summing up. It was submitted this "demonstrates that there was nothing realistically prejudicial to Maurice in the direction that was given, and that the reasoning of the jury to the verdict of guilty could not have realistically been affected."
The respondent also submitted that the direction relating to Mr Anoih's evidence could not logically have impacted on the verdicts on counts 8-11. Those counts related to the events of the Saturday night, that is the allegations of sexual assault against MS, to which Mr Anoih was not a witness or participant. While Mr Anoih said he was present in the apartment at some time on Saturday night and saw a female (presumably ZG) enter the apartment while he was getting ready to go out, he said that he did not see any member of his group have physical contact with that female. He then left the apartment and had no further contact with those who remained there that night.
[354]
Resolution of ground: the warning should not have been given
[355]
Three questions arise for determination under this ground. First, did Mr Anoih fall within the ambit of s 165(1)(d); that is, was he a person "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding"? Second, if he did fall within the section, were there "good reasons" for not giving the warning? Finally, assuming the warning ought not to have been given, was the direction "material" in the sense that it "could realistically have affected the jury's reasoning to a verdict of guilty": Brawn v The King at [10]-[11].
[356]
Did Mr Anoih's evidence fall within the ambit of s 165(1)(d)?
[357]
Section 165(1)(d) is cast in relatively wide terms. The category of witnesses to whom it applies is broader than those who have been formally charged with involvement in the crime, or those who have escaped prosecution, or received some benefit, by offering to give evidence. The section is most frequently - although not exclusively - invoked by an accused person and serves a protective purpose by ensuring that the jury adopts a cautious approach to evidence given by a person who may have been involved in the events. For that reason, the categories of evidence in paragraphs (a) to (g) in s 165(1) should not be narrowly defined. Further, the requirement in s 165 to provide appropriate warnings applies to evidence "of a kind that may be unreliable, including" the specific categories then enumerated.
"... there is a distinction between a test of 'where a person is criminally concerned' and one 'where a person might reasonably be supposed to be criminally concerned'. Clearly evidence that does not positively persuade a judge that someone was criminally concerned might well raise a sufficient possibility of such a concern as to enable one to say that the person 'might reasonably be supposed to have been concerned in the events'."
[359]
A similar point concerning the breadth of the category of evidence covered by s 165(1)(d) was made by Beech-Jones CJ at CL in Blair v R[2022] NSWCCA 176 where his Honour said at [5]:
[360]
"The text of s 165(1)(d) requires focus on the 'events giving rising to the proceeding'. In one sense this can be contrasted with simply being involved in the offence the subject of the proceeding, in that s 165(1)(d) can be engaged by a witness who might not strictly be criminally concerned with the very offence charged, but who might nevertheless be supposed to be criminally concerned in the criminal endeavour that gives rise to the offences charged. However, whatever the precise scope of s 165(1)(d), it does not extend to the complainant in this case. In this case, the 'events giving rise to the proceeding' was the assault, detention and robbery of the complainant. Self-evidently, the complainant was not criminally concerned in those events. Given the origins, purpose and scope of s 165(1)(d), the (proposed) sale of drugs to the applicant's daughter by the complainant on the evening of the 28 May 2019 was not part of the events that gave rise to the proceedings. It follows that s 165(1)(d) was not engaged in relation to the complainant's evidence."
[361]
For the section to be engaged, it is not necessary that there is evidence that the witness was guilty of any offence and no requirement for a trial judge to be satisfied to any particular standard that the witness was, in fact, criminally concerned in the events.
There was evidence upon which it could be inferred that Mr Anoih was present during some of what was, on the prosecution case, non-consensual activity with MF and DM. Both MF and DM said there were two men on each of them, perhaps three on MF, but because the light was off and their faces were covered, the two complainants could not see who was present or identify who committed individual acts.
MF said she yelled out "ouch" because something was placed in her "bum", that she saw Mr Anoih enter the bedroom, and that he was on the floor while she remained on the bed. She saw Mr Anoih but could not see anyone else. By contrast, Mr Anoih said that he did not enter the bedroom at all at the time of the (allegedly) non-consensual group sex. On his account, the extent of his involvement was that he came to the door when MF called out to him, asked her if she was okay to which she responded "Yes, I'm okay" and that he then returned to the living room. MF's evidence was that she asked him "Can you get your friends off me?", Mr Anoih spoke in a "different language" to his friends, and they left. However, MF said all of her sexual activity with Mr Anoih was consensual.
Based on the approach taken in Kutschera v R, the conflicting accounts of Mr Anoih's whereabouts and involvement, which ranged from him merely being at the door of the bedroom to him being one of the men involved in the non-consensual group sex, gave rise to the possibility that Mr Anoih was criminally concerned in the events giving rise to the proceedings. Accordingly, he was a witness who fell into the category contemplated by s 165(1)(d).
[362]
Good reasons not to provide a warning: where the direction relates to evidence that is favourable to an accused person
[363]
The text of sub-ss 165(1) and 165(2) does not support a general proposition that a warning under s 165 cannot be given in relation to evidence that is favourable to an accused person in criminal proceedings. Under sub-s (2) a "party" may seek a direction and that obviously includes the prosecuting authority. The section does not, explicitly or implicitly, suggest that the warning is restricted (in criminal cases) to evidence that inculpates that accused person. However, there are several cases where courts have held that the fact that the evidence is exculpatory may establish that there are "good reasons" for not complying with the requirement in sub-s (2).
In R v Salama, the accused was charged with shooting his wife. He had made out of court statements saying that "the shooting was a mistake (ie: an accident)". The evidence was hearsay and caught by s 165(1)(a) and the trial judge directed the jury at [75]:
[364]
"[Defence counsel] has urged that you would have regard to those statements as supporting the case put forward by the accused, that what happened was accidental. I must tell you members of the jury, however, the law is that such statements made in this case by the accused, may be unreliable. They are unreliable, you might think, for the possible reason that they are simply self-serving statements made by the accused shortly after these events. Members of the jury, I should warn you that when you consider as to what reliance you would place on those statements by the accused that they may be unreliable for the reason which I have outlined to you."
[365]
The Court of Criminal Appeal (Kirby J, Wood CJ at CL and Ireland J agreeing) held that this warning should not have been given saying at [87]:
[366]
"Thirdly, even had the Crown asked for a warning, there is a discretion to refrain from giving it 'if there are good reasons for not doing so' (s 165(3)). Here, it may be thought that there were a number of good reasons why such a warning should not be given (quite apart from the absence of request from the Crown). The warning was, unquestionably, adverse to the accused. The evidence, as mentioned, had been tendered by the Crown, not the accused. The Crown had sought to obtain the benefit of admissions made in the course of the material which it tendered. It may be thought unfair, in such circumstances, that it should, in addition, be given the bonus of having the jury told that those matters which may be favourable to the accused, within such material, may be regarded by the jury as unreliable, because the accused had an interest."
[367]
In reaching this conclusion, Kirby J drew attention to the following observation made by Simpson J in R v Crisologo(1997) 99 A Crim R 178:
[368]
"Before leaving this topic it is worth finally observing that, where evidence of this kind is admitted, it will also be necessary for the judge to give consideration to the provisions of s 165 and, if requested by a party (including the Crown) to do so, to warn the jury of the potential unreliability of the evidence and the reasons for that unreliability."
(Our emphasis.)
[369]
R v Crisologo was concerned with hearsay statements made by the complainant and the accused in relation to sexual offences. The issue before the Court was the admissibility of exculpatory statements made by the accused and Simpson J's observation about s 165 was an obiter remark made in passing.
Jamieson was a case decided under the common law and concerned (relevantly) a direction about evidence given by accomplices called in Jamieson's case but whose evidence was damaging to both Elliott and Blessington. Gleeson CJ (with whom Lee AJ and Hope AJA agreed) said at 76:
[370]
"His Honour gave the jury a general direction, in accordance with the authorities, as to the care that needed to be exercised in approaching the evidence of witnesses who were accomplices of the accused. The potential unreliability of evidence of accomplices, especially because of their possible motivation to give an account of events minimising their own role in the matter, has long been recognised. Arrow and Wilmot were accomplices. They were called as witnesses in Jamieson's case, but their evidence was particularly damaging to both Elliott and Blessington. His Honour warned the jury that they were accomplices and that their evidence was to be scrutinised very carefully and that, unless the jury could find corroboration of what they said, the jury should be reluctant to accept them.
The problem which is now raised is that Arrow and Wilmot gave evidence supportive of Jamieson's case. Accordingly, it is submitted, his Honour should have confined his warnings about the care to be taken in relation to their evidence to those parts of their evidence which supported the Crown case against one or other of the accused. Technically, this is correct. However, no complaint was made about the matter at the trial, and there was no request for a redirection. This indicates that no practical problem was seen by Jamieson's legal representatives, and as a matter of common sense, it is highly unlikely that there was a practical problem. ..."
[371]
These remarks were applied in R v Baker where a conviction was quashed because the trial Judge directed the jury that the evidence of an accomplice may be unreliable in circumstances where their evidence was largely favourable to the accused. Ipp AJA (with whom Handley JA and Greg James J agreed) said:
[372]
"[27] In Jamieson, Elliott and Blessington(1992) 60 A Crim R 68 Gleeson CJ observed that where an accomplice gives evidence partly supportive of the case of an accused person it is technically correct that any accomplice warning that is given should be confined to the care to be taken in relation to those parts of the accomplice's evidence that support the Crown case.
[28] This stricture was not observed by [the trial Judge]. Those parts of Young's testimony which supported the Crown case against the appellant were, in my opinion, of minimal significance. The warning, however, was given in general terms. In my opinion it was entirely inappropriate. Certainly it was capable of reflecting adversely on Young."
[373]
While R v Baker was decided after the introduction of the Evidence Act, with reference made to s 20 in a different context, there was no reference to the provision in s 165.
In R v Rose, one of the grounds of appeal was that the trial Judge fell into error by warning the jury about identification evidence which was favourable to the accused. Wood CJ at CL and Howie J addressed a submission that a direction under s 165(1)(d) was analogous to an unreliability direction given with respect to visual identification evidence and said at [294]:
[374]
"Junior counsel for the appellant, who argued this ground of appeal, sought to draw an analogy between identification evidence which tends to exculpate an accused, on the one hand, and evidence of a witness who would come within s 165(1)(d), that is a person who might reasonably be considered to be implicated in the offence charged against the accused, but who gives evidence exculpating the accused, on the other. In such a case it has been held that a warning as to the potential unreliability of such evidence ought not to be given or at least should be limited to such evidence as assists the Crown; R v Jamieson(1992) 60 A Crim R 68; R v Baker[2001] NSWCCA 151. But there is no true analogy. The potential unreliability of that kind of evidence disappears when the evidence is being used to exculpate an accused. There is no longer a risk that the witness is implicating the accused in the offence charged in order to obtain an advantage or to downplay his or her own part in the offence. Visual identification evidence remains potentially unreliable no matter what use is made of it."
[375]
Smart AJ disagreed with the joint reasons on the ambit of the phrase "identification evidence" in s 165(1)(a), but said at [343]-[344]:
[376]
" ... The first step is to decide whether exculpatory identification evidence is of a kind that is unreliable. I do not agree that it is. If I am wrong in that view and have defined the category of unreliable evidence too narrowly, it would be necessary to consider whether there is good reason not to give a warning. The fact that the evidence is exculpatory would be a good reason. In most cases the difference in approach will not affect the result.
The appellant submitted that even if the correct approach was, contrary to his submissions, that just described there were good reasons in the present case for not giving a warning and that the judge erred in giving a warning. Those good reasons included that the evidence of Mr Dawson was independent and exculpatory, that the contemporaneous identification was not affected by factors which cast doubt upon it, indeed, quite the reverse and the unfairness of singling out Mr Dawson's evidence for a warning."
[377]
In R v Robinson[2003] NSWCCA 188, most of the witnesses to a gaol murder were other inmates. One of those witnesses gave evidence favourable to the accused but his evidence was caught by the unreliability warning given by the trial judge. This Court (Beazley JA, Hidden J and Carruthers AJ) at [183] applied the reasoning employed in Jamieson and R v Baker:
[378]
"Those were cases dealing with the evidence of an accomplice, and the passages referred to are authority for the proposition that a warning about evidence of that kind is apposite if it is relied upon by the Crown, but not if it is led in support of the defence case. The same must be so of other categories of evidence calling for a warning in the interest of fairness to an accused. The reasons of policy which dictate such a warning when the evidence is led in proof of guilt have no application when it is relied upon in favour of an accused**.** Of course, the testimony of Mr Young was challenged by the Crown prosecutor at the trial and the jury would have been entitled to examine it with a critical eye. However, it was not appropriate that they should do so against the background of a direction by the trial judge that it was evidence of a kind which, in the experience of the courts, might be unreliable. The same must be said of aspects of the evidence of the other prisoner witnesses which was favourable to the appellant (referred to at par 85)."
[379]
Even though defence counsel sought no re-direction, the Court was satisfied the ground of appeal was made out: [184]. In combination with other errors that affected the trial, the Court was satisfied (at [203]) that the conviction must be quashed.
A year later, the Court (Grove, Howie JJ and Newman AJ) considered a similar ground of appeal in R v Ayoub. The issue arose out of a warning given by the trial Judge in relation to a defence witness who gave evidence that another man (Walsh) admitted to the crime (a stabbing) of which the applicant was convicted while the witness and Walsh were in gaol together. The trial Judge treated the witness as a prisoner informer in respect of whom a warning was required pursuant to s 165(1)(e) of the Evidence Act. This Court concluded that the warning was not appropriate. Howie J said at [15]-[16]:
[380]
"In my view, it will rarely be appropriate for a jury to be warned to scrutinise the evidence of a defence witness with care regardless of how unreliable the witness might be. Warnings and cautions in relation to the potential unreliability of witnesses usually arise because the court has some knowledge of particular aspects of the evidence which might undermine its reliability and which might not be readily apparent to a juror. See generally R v Stewart[2001] NSWCCA 260; (2001) 52 NSWLR 301; R v Fowler[2003] NSWCCA 321 at [125]. The matter or matters that call for a warning under s 165 will rarely be applicable to a witness who is not giving evidence implicating an accused person of the offence for which the accused stands trial.
So, for example, where a witness falls within the class of witness mentioned in s 165(1)(d), often referred to as an accomplice, but is giving evidence for the defence exculpating the accused, no warning under the section would be appropriate at least so far as the evidence is in favour of the accused; R v Baker[2001] NSWCCA 151 applying R v OGD(1997) 45 NSWLR 744. This is because the aspect of the witness's status that gives rise to the possibility of unreliability is no longer relevant: the potential of the witness to falsely implicate the accused in order to diminish his own culpability ceases to exist."
[381]
Howie J distinguished the decision in R v Rose by saying at [18] that identification evidence is "the most obvious" example among categories of evidence "that are potentially unreliable no matter whether they exculpate or inculpate an accused".
In Proud v R (No 2), the conviction was quashed when a warning under s 165(1)(d) was given in relation to one of the accused's evidence in a trial involving multiple accused. R A Hulme J said at [73] aspects of the direction:
[382]
"... were extraneous and irrelevant because this was not 'a case in which the Crown relies upon the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings before the Court'. Rather than relying upon it, the Crown vigorously disputed the appellant's evidence."
[383]
GBB v R[2019] NSWCCA 296 was an appeal from a judge alone trial where the impugned direction did not impact on the outcome of the appeal. However, Basten JA said at [34]-[35]:
[384]
"The appellant's submissions on the appeal relied on two propositions. The first was that the warning as to unreliability sought by the accused at trial did not relate to her recantation in her oral evidence at the end of the cross-examination, but rather her evidence as a whole. Secondly, the warning given under the general law was never intended to apply to evidence favourable to the accused, but rather to reliance upon evidence unfavourable to the accused, with the risk of an unfair trial and a miscarriage of justice in the event of conviction.
Both propositions may be accepted; they do not, however, demonstrate that there has been a miscarriage of justice in this case for the purpose of s 6(1) of the Criminal Appeal Act 1912 (NSW). ..."
[385]
It is worth making reference to one decision made by a single judge because it neatly captures the essence of parts of the applicants' argument in the present case. In R v Medich (No 25)[2017] NSWSC 356, Bellew J declined to provide a s 165 warning in relation to two witnesses and relied on the absence of matters about which the Court had particular knowledge and on the important passage from R v Ayoub referred to at [329] above:
[386]
"[6] It follows that if there is no aspect of the evidence about which the Court has particular knowledge, and where the nature of the evidence is such that it is well within the province of the jury to assess, it is not likely to attract a warning under the section: Baartman at [61]-[65]. All of those circumstances weighed against giving a warning under s 165 in relation to Mr McNamara's evidence.
[7] There was, however, an additional factor which also weighed against such a warning being given. Although s 165 may apply equally to evidence adduced by the prosecution and the defence, there have been statements to the effect that it will rarely be appropriate for a warning under that section to be given in respect of the evidence of a defence witness, regardless of how unreliable that evidence might be. The rationale of that approach lies in the fact that the necessity for warnings and cautions regarding the unreliability of evidence usually arises because the Court has some knowledge of particular aspects of the evidence which might undermine its reliability, and which might not be apparent to a member of the jury. The matters which call for a warning under s 165 will rarely be applicable to a witness who is not giving evidence implicating an accused person in the commission of the offence for which he or she is standing trial: R v Ayoub[2004] NSWCCA 209 at [14] per Howie J.
[8] It was for those reasons I came to the conclusion that a warning under s 165 in respect of Mr McNamara's evidence was not appropriate."
[387]
As the foregoing survey of some of the cases demonstrates, the preponderance of authority supports the position taken by counsel for Maurice Hawell both at the trial and on the appeal. That is, a warning under s 165(1)(d) will not usually be appropriate where the evidence is favourable to the accused or does not advance the prosecution case. That is because there will generally be "good reasons" pursuant to s 165(3) not to give the direction.
In the present case, the trial Judge did not deliver formal reasons for providing the warning over the objection of Senior Counsel appearing for Maurice Hawell. It is not customary for a trial Judge to give a judgment for such a decision and nobody at the trial asked her Honour to provide reasons. The trial Judge did not announce her decision on the issue after the parties put their positions immediately before the Prosecutor addressed on 8 July 2024. On 11 July 2024, after the closing addresses, her Honour said she would tell the jury that "Matthew Anoih ... is not on trial" and "whether or not he was charged is irrelevant to this trial". Other than that, her Honour did not indicate that she intended to warn the jury that Mr Anoih's evidence fell into a class that the law recognised may be unreliable, or the reasons she proposed to do so over the objection of Maurice Hawell.
It is difficult to discern the reasons from the content of the direction itself or from the discussions before the summing up. It is obvious, as the respondent submitted, that her Honour was satisfied that Mr Anoih potentially fell within the category of witness covered by s 165(1)(d) and that finding was correct. However, whether there were "good reasons" not to warn the jury that Mr Anoih's evidence may be unreliable was a more difficult question. It was complicated by the stance taken by counsel for the co-offenders at the trial. Her Honour's reasons for rejecting the submissions of Mr Pontello are not clear.
This was not a case where the issue of Mr Anoih's reliability or credibility was based on matters about which the jury would have been unaware or involved factors that the jury may have overlooked: cf R v Baartman[2000] NSWCCA 298 at [62] (Kirby J) and at (Weinstein J). He was cross-examined by the Prosecutor and by counsel for each of the accused. Counsel made arguments as to the details of his evidence and his credibility. It was not a case where the witness received any benefit for giving evidence and some of the matters put to the jury in the warning as impacting on his reliability were never put to Mr Anoih in cross-examination. This added to the unfairness of "singling out" Mr Anoih for a warning.
[388]
The respondent submitted, correctly and by reference to the recent judgments of the High Court in Brawn v The King and MDP v The King, that "there is a materiality threshold that must be established". It was submitted "that there was nothing realistically prejudicial to Maurice in the direction that was given, and that the reasoning of the jury to the verdict of guilty could not have realistically been affected." Reliance was placed on the failure of counsel to seek a re-direction at the conclusion of the summing up.
The absence of any application for re-direction is of little relevance to the question of materiality in circumstances where Senior Counsel vigorously opposed the giving of any s 165 warning in the first place. Mr Anoih was a very important witness. As the applicant's submissions demonstrated, if some parts of his evidence were accepted - or not disproved to the criminal standard - it is difficult to see how the jury could have reached a verdict of guilty on the counts involving MF and DM. Once that is understood, it is clear that the direction had the capacity, in a real and not fanciful way, to impact on the result of the trial. In these circumstances, we are satisfied that the error in providing the warning "could realistically have affected the reasoning of the jury to a verdict of guilty" in relation to counts 1-7.
On the other hand, we accept that the misdirection could not have impacted on the jury's verdicts on counts 8-11 because Mr Anoih's evidence barely touched upon the incidents involving MS which occurred on the Saturday night.
[389]
We would not invoke rule 4.15 of the Supreme Court (Criminal Appeal) Rules against Andrew David and refuse leave due to the failure of his counsel to object to the direction at the trial. The argument was fully ventilated by counsel appearing for Maurice Hawell.
We would uphold ground 5 in Maurice Hawell's appeal and ground 4 in Andrew David's appeal. The verdicts of guilty on counts 1-7 in Maurice Hawell's case and counts 2-7 in Andrew David's case must be quashed. The question of whether to order a re-trial on those counts will turn on the resolution of other grounds of appeal.
[390]
Failure to direct the jury in relation to identification evidence as required by s 116 of the Evidence Act 1995 (NSW) (ground 4 in Marius Hawell appeal):
[391]
"The trial Judge erred in failing to direct the jury as required by s 116 of the Evidence Act 1995 (NSW)."
[392]
This ground relates only to Marius Hawell's appeal and only to counts 10 and 11 which concern the events on the Saturday night involving MS.
Marius Hawell submits that part of the evidence given by the witness ZG was "identification evidence" within the meaning of the Evidence Act. Accordingly, s 116 required the trial Judge to inform the jury of the "special need for caution" in dealing with this evidence and the reasons that such caution was required. The respondent submits that leave should be refused under rule 4.15 of the Supreme Court (Criminal Appeal) Rules because trial counsel made no request for such a direction and sought no redirection at the conclusion of the summing up. The respondent submits the case against Marius Hawell was a circumstantial case, not an identification case, and that there was no miscarriage of justice arising from the failure to direct the jury in accordance with s 116.
[393]
Counts 8-11 alleged four counts of aggravated sexual assault committed against MS on Saturday 26 February 2022. MS gave evidence that she went to the apartment willingly with Maurice Hawell but that she was sexually penetrated by a number of men against her will. The indictment nominated Andrew David and Maurice Hawell as the perpetrators of the sexual assaults alleged in counts 8 and 9. Marius Hawell was alleged to have entered the room after the sexual assaults commenced. By counts 10 and 11, it was alleged that Marius Hawell was present and participated with Mr David and Maurice Hawell in the sexual assault of MS. There was no dispute that Andrew David and Maurice Hawell were present during these events, and their case was that MS was consenting and/or that they did not know that she was not consenting. These sexual assaults formed part of the alleged joint criminal enterprise which is discussed under the other grounds of appeal advanced by each of the applicants.
The prosecution relied on the evidence of ZG to establish that Marius Hawell entered the room where MS was sexually assaulted. ZG referred to several men she saw that night, describing them by numbers. The prosecution case was that Marius Hawell was the person to whom ZG referred to as "male number 6". ZG first referred to male number 6 during her evidence in chief:
[394]
"Q. So you've described five males for the jury I think. In relation to are there any other males in the room and kitchen area that you were introduced to on this evening other than those five?[1]
A. Yes, there was another male who was there. I think I refer to him as 'male number 6' in my statement. He was more of a stocky build than the others. He seemed younger than the others slightly. I, I didn't really talk to him but he was in the room a lot that night when I was in, in the apartment."
[395]
ZG gave the following evidence about male number 6 entering the bedroom:
[396]
"Q. Did you see anyone go into that bedroom after male number 2 and the female went in there?
A. Yes. I definitely saw male number six go in and out.
Q. So, male number six go in and out. When did you see him go in?
A. Couldn't say reliably, but it didn't seem that long after they went in - almost immediately it seemed as though he - he was going in.
Q. And did you see him come out?
A. Yes.
...
Q. In that range of time do you know where or did you make any observations of number 3?
A. Male number 1 and I were facing the kitchen so our backs were to the room. The only reason I was aware of male number 6 entering the room at all because I was unsure of what was happening so I turned around and, and I looked. I don't - I believe male 3 entered the room but I don't remember actually seeing him do so.
...
Q. You've spoken about male number 6 going in and out of the bedroom. At the time you're making observations of him entering and leaving are you able to say what he was wearing?
A. He was fully clothed when I saw him so wearing what he was wearing earlier in the night."
[397]
In terms of identifying Marius Hawell as "male number 6", ZG testified:
[398]
"Q. At some stage were you contacted by police who wanted to speak to you about your time with that group of males, is that right?
A. Yes.
Q. Do you recall when that was?
A. I believe it was a few months later.
Q. Did police call you or come and visit you?
A. They called me.
Q. Did they request that you attend a police station?
A. Yes.
Q. Did you do that?
A. Yes.
Q. Did you subsequently make a signed statement?
A. Yes.
Q. After making that statement was there another time that you attended the police station?
A. Yes, there were multiple times.
Q. In relation to one of the times were you shown some images on the computer and asked if you identified any of the males out of a group of pictures. Did you do that?
A. Yes.
Q. When you were shown those groups of pictures did you identify anybody in those groups of pictures that you recognised?
A. Yes.
Q. You recall who it was that you recognised in those images that you were shown?
A. The men that I had met that night.
Q. Did you identify any particular males that you met that night as part of this process?
A. Yes.
Q. Which ones?
A. I don't remember without looking at the pictures.
Q. In the process did you identify to police or in some form which numbers that you recognised and who they were?
A. Yes."
[399]
Detective Sergeant Michael Keegan gave evidence of the procedure adopted to establish the identity of "male number 6":
[400]
"Q. In relation to the police investigation, were both [MS] and [ZG] - did they attend the police station at different times to participate in an identification process?
A. Yes, they did.
Q. And does that process involve an officer taking the witness through a series of images on a computer screen?
A. Yes, it does.
Q. And is part of that process that a photograph of persons of interest are placed, along with another 19 images?
A. That's correct.
Q. And in this case, was that done - 20 images, one of them including Maurice Hawell?
A. That's correct.
Q. Another array with 20 images including Andrew David?
A. That's correct.
Q. And another 20 images including Marius Hawell?
A. That's correct
Q. And in the process that was undertaken with [MS], in the array that included Mr David, is it the case that [MS] did not identify anybody -
A. That's correct.
Q. --in that group? In relation to the array that included Maurice Hawell, did [MS] pick somebody else, other than Mr Hawell?
A. That's correct.
Q. And from that array - as they're doing this, they're writing things down on a piece of paper, is that right?
A. Yeah, an officer who's leading the array generally writes the answers to certain questions.
Q. And in relation to the array where [MS] picks somebody else other than Mr Maurice Hawell, was it recorded, 'I think he was one of the sexual assaulters'?
A. Yes.
Q. The person that she identified was of course not Maurice Hawell or any of the other accused?
A. That's correct.
Q. Or anyone else who was present at the apartment?
A. That's correct.
Q. In relation to a third array that include Maurice Hawell, did [MS] pick somebody out of that array other than Marius Hawell?
A. Yes, she did.
Q. And in relation to that selection, was it recorded by the officer to the answer of why she picked this person, 'Stood in the room'?
A. That's correct.
Q. And was [ZG] shown the same photographs?
[401]
Part 1 of the Dictionary to the Evidence Act defines identification evidence:
[402]
identification evidence means evidence that is -
[403]
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where -
(i) the offence for which the defendant is being prosecuted was committed, or
(ii) an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or
(b) a report (whether oral or in writing) of such an assertion.
[404]
Section 115(1) provides that "picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers." Sections 115(2) and (7) provide for the exclusion of such evidence unless certain conditions are met and for certain directions if the evidence is admitted. Apart from the definition in sub-s (1), the provisions in s 115 do not otherwise arise under this ground.
(1) If identification evidence has been admitted, the judge is to inform the jury-
[406]
(a) that there is a special need for caution before accepting identification evidence, and
(b) of the reasons for that need for caution, both generally and in the circumstances of the case.
[407]
(2) It is not necessary that a particular form of words be used in so informing the jury.
[408]
For completeness, and to put the position taken by trial counsel for Marius Hawell in context, s 165(1)(b) of the Evidence Act also provides for a warning about identification evidence if one of the parties seeks such a direction and there are no "good reasons" for not providing the direction.
To summarise the foregoing, ZG gave evidence that a person she called "male number 6" was present at the flat and that he entered the room where, on the prosecution case, MS was being sexually assaulted. ZG also gave evidence that she chose an image of male number 6 out of an array of photographs shown to her by police. Detective Keegan's evidence was that the photograph ZG selected was a photograph of Marius Hawell. This evidence was "picture identification evidence" under s 115 of the Evidence Act and was, therefore, "identification evidence" for the purpose of both ss 116 and 165(1)(b).
Contrary to the respondent's submission, this was "identification evidence" as that expression is used in the Evidence Act. It was evidence that ZG identified Marius Hawell as male number 6, that is, the man she said entered the room during the assault of MS. It is artificial to separate the evidence of the two witnesses - that is, ZG and Detective Keegan - and to submit, as the respondent did, that ZG's evidence was not identification evidence but that the evidence of the police officer identification evidence. The police officer's evidence was critical to an understanding of ZG's evidence. Without Detective Keegan's evidence, ZG's evidence was not capable of inculpating Marius Hawell in the offences charged in counts 10 and 11. Equally, the Detective's evidence was not relevant without the evidence of ZG. As Basten JA said in ; at - :
[409]
"In the case of an identification parade, where there is an affirmative identification, the assertion by the witness will be to the effect, 'I identified from the line-up the person whom I recognised as the woman I saw break the shop window'. Absent an in-court identification, the link between the person selected at the identification parade and the person on trial will need to be proved by other evidence, for example by the investigating police officer saying that the person identified at the parade is the person on trial.
Accordingly, the fact that a further link is required between the person identified and the defendant does not exclude the operation of the section."
Should the jury have been directed in accordance with s 116?
[412]
Section 116 is expressed in mandatory terms. A direction is required even if it is not requested by one or other of the parties: Kanaan v R[2006] NSWCCA 109 at [183]. However, the direction may not be required if the identification evidence "is in the end not in dispute": Kanaan v R at [183] citing Dhanhoa v The Queen(2003) 217 CLR 1; [2003] HCA 40 at [19]- [22], [53].
The respondent attempted to mount a submission that the identification was not disputed based on the following part of the closing address made by counsel for Marius Hawell:
[413]
"... As far as her numbering system is, there doesn't seem to be much dispute about this, number 1 is Zaid Haddad; number 2 is Maurice Hawell; number 3 is Andrew David; number 4 is George (second wind) Enwiya; number 5 is George Haddad, brother of Zaid; and the Crown says number 6 is Marius Hawell.
We know during the police photo ID Marius Hawell, and this is not disputed, Marius Hawell is picked out and [ZG] says 'That's number 6'."
[414]
It is apparent from this submission that counsel was acknowledging two things. First, he was outlining the numbering system used by ZG to attribute specific actions to particular men. Secondly, he was conceding that ZG selected a photograph of Marius Hawell and, in doing so, expressed the belief that it was a photograph of male number 6. Counsel was not conceding that ZG was correct in making this identification. This is clear from the language he used when he said, with our emphasis, "the Crown says number 6 is Marius Hawell".
Furthermore, the accuracy of ZG's identification was challenged a short time later in the closing address (again, with our emphasis throughout):
[415]
"At that point there's only [MS] and on the Crown case, Marius Hawell in that room, and the door is then closed. There's no mention at that point by [ZG] of number 3 Andrew David going into the room. Then we move onto this issue of are you satisfied beyond reasonable doubt that it's Marius Hawell that was male number 6 that entered the room. The same male that's identified by [ZG] in the police photo ID parade at 556.
...
Remembering male 6 the Crown says is Marius Hawell, the person [ZG] picked out in the photo ID parade. I'm not dragging you through this evidence of [ZG] just for sport, it's crucial to the Crown case in relation to define the last two counts. It's the evidence that the Crown relies on to prove to satisfy you that Marius Hawell was the third person that went into the room and the one with the light. There's no other evidence.
He's in the flat but so are others, there's no dispute about him being in the flat. That's one of the reasons why that chronology was prepared, so you can do the sums about working out who's there and who's not there, rather than having to trawl through the hundreds of photos in CCTV still capture volume. There's no dispute that he's in the apartment. But the Crown I'd suggest to you needs to satisfy beyond reasonable doubt that he's the one, that [ZG] is right when she says that male number 6 is the person who went into the room. She says it is.
The trouble is she also says he left the apartment with that group, with her. You can look at the CCTV itself, you can look at the stills, or you can look at the chronology. The people she left the apartment with was Zaid Haddad, David Babanour, Maurice Hawell and Andrew David, the five of them. Herself, Zaid Haddad, David Babanour, Andrew David, and Maurice Hawell. Marius Hawell did not leave the apartment with her. The person she points out as number 6 or says is number 6 in the photo ID parade, that she says left the apartment with her, is flat out wrong or different.
You're being asked to find Marius Hawell guilty, or the Crown proves it case beyond reasonable doubt, based on that evidence. And it's not just suspicious it's demonstrably incorrect in relation to number 6, to use [ZG]'s word, that she reliably recalls leaving the apartment with. Going back to that initial school reunion analogy. "
[416]
A central issue between Marius Hawell and the prosecution on counts 10 and 11 was whether the jury could be satisfied of the accuracy and reliability of ZG's evidence as to the identity of male number 6 and whether male number 6 was the man who entered the bedroom.
In those circumstances, it was appropriate that the jury receive a direction in accordance with s 116. The failure to provide this warning was an error of law.
[417]
Neither party drew the trial Judge's attention to the provision in s 116 of the Evidence Act. However, counsel for Marius Hawell made the following somewhat tepid application for a warning under s 165:
[418]
"[COUNSEL]: ...The other thing that was on my mind was, potentially, a s 165 warning in relation to the identification by [ZG], but I had in mind that your Honour might respond and say, 'You've got enough with the beyond reasonable doubt direction, Mr Corish, just be content with that'.
HER HONOUR: Yes, I'll write it down.
[COUNSEL]: So, did I read your Honour's mind?
HER HONOUR: You did.
[COUNSEL]: Thank you. I just thought I'd put that on the record."
[419]
The reference in that exchange to the "beyond reasonable doubt direction" was a reference to the fact that the trial Judge directed the jury that ZG's identification evidence needed to be established beyond reasonable doubt for the prosecution case to succeed: cf Shepherd v The Queen(1990) 170 CLR 573; [1990] HCA 56 at 576, 579-580, 585, 593 and R v Merritt[1999] NSWCCA 29 at [70]- [71].
The relevant directions in the present case were as follows, with the "Shepherd direction" (to use criminal lawyers' shorthand) italicised:
[420]
"For counts 10 and 11, the Crown asks you to draw an inference or a conclusion of guilt as to the accused, Marius Hawell, being in the room with the two accused, and [MS] beyond reasonable doubt from the evidence of [ZG], that she observed male 6, who she later identified in a police photo identification process as being the accused Marius Hawell. It also relies on other evidence to a lesser degree. For example, of Zaid Haddad stating he did not go into the bedroom, David Babanour's text message saying that he did not go into the bedroom and [MS]'s evidence that there were three people in the room. [ZG] had stated male 6 went in, came out and then returned in.
Now, ladies and gentlemen it is not open to you to draw a conclusion favourable to the Crown, unless you were first to find as a fact that this is what occurred, that is, that you were to accept that part of [ZG]'s evidence as being accurate and reliable beyond reasonable doubt. As that fact is essential to you coming to a conclusion in favour of the Crown, because the Crown must prove its case beyond reasonable doubt, then you would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt.
The fact must be proved beyond reasonable doubt, not because it alone proves the guilt of the accused, Marius Hawell, but, of course, you can take into account the other evidence of David Babanour, Zaid Haddad and [MS] into account in that assessment, but because it is an essential step in the reasoning that the Crown asks you to follow in order to establish its case. Unless that fact is proven beyond reasonable doubt, the reasoning relied upon by the Crown must fail.
As I have already said, in relation to facts which are not essential to your process of reasoning - that is of Zaid Haddad, David Babanour and the complainant - you would not consider those facts you find established by evidence in isolation, but you would have regard to them as a whole. If you were satisfied beyond reasonable doubt as to the existence of that essential fact and identification by [ZG], then you can take that fact together with all the other facts you find established and ask whether you can draw an inference or a conclusion in favour of the Crown from those facts considered as a whole.
If such a conclusion that the Crown asks you to find is not available, then the Crown's circumstantial case for counts 10 and 11 fails. But it is for you to determine what conclusion, if any, can reasonably be drawn from the established fact, and then consider whether there is any other reasonable explanation for those facts, other than that of the accused presence and therefore guilt in the room.
[421]
With respect to the approach taken at the trial, a direction that ZG's identification evidence needed to be established beyond reasonable doubt before the jury could convict Marius Hawell on counts 10 and 11 was no substitute for a warning as to the dangers of identification evidence or the special need for caution in accepting such evidence. On the contrary, the Shepherd direction highlighted the importance of the identification evidence and the need for such a warning.
The need for firm warnings about the dangers of identification evidence has long been recognised. In Alexander v The Queen(1981) 145 CLR 395; [1981] HCA 17 Mason J described such evidence (at 426) as "notoriously uncertain". In Domican v The Queen(1992) 173 CLR 555; [1992] HCA 13 Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ discussed the "seductive effect of identification evidence", the history of "proven miscarriages of justice" and the need for, and content of, a "cogent and effective" warning tailored to the circumstances of the case. It is worth repeating what their Honours said at 561-2:
[422]
"Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
[423]
Sections 116 and 165(1)(b) reflect these judicial statements as to the dangers of identification evidence and give statutory effect to the need for a warning. As Carruthers AJ (with whom Sheller JA and Hidden J agreed) said in R v Demiroz[2003] NSWCCA 146 at [62]- [63]:
[424]
"I have already noted that there is a distinction between the requirements of the common law as expounded in Domican and those of the relevant legislation. This is because s 116(1) required that the direction must be given, whenever identification evidence has been given as distinguished from the common law requirement that a warning had to be given only where the identification evidence represented a significant part of the proof of the guilt of the accused.
I am satisfied therefore that regrettably his Honour (in the absence of assistance from counsel) overlooked the mandatory requirements of s 116 of the Act and omitted to give the jury appropriate directions and warnings. An error of law has been established."
[425]
In Ilioski v R[2006] NSWCCA 164 this Court again referred to the seductive nature of such evidence and emphasised that the warning is concerned with reliability rather than honesty. Hunt AJA (with whom Adams and Latham JJ agreed) said at [62]-[63] and [98]:
[426]
"[62] Section 116 requires the trial judge to inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for that need for caution, both generally and in the circumstances of the particular case. That requirement goes beyond the usual obligation of a trial judge in the summing-up: Kanaan & Ors v Regina[2006] NSWCCA 109 at [183].
[63] A judge is usually required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury so far as those cases are revealed by the conduct of the parties: Domican v The Queen(1992) 173 CLR 555 at 561. However, because the seductive effect of honest evidence of identification has so frequently led to proven miscarriages of justice when the evidence is subsequently shown to have been mistaken, special rules apply in relation to identification evidence. Where such evidence is admitted as part of the Crown case (unless the identification is in the end not in dispute: Dhanhoa v The Queen[2003] HCA 40; (2003) 217 CLR 1 at [19]- [22], [53]), the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence - whatever the defence raised and however the case is conducted: at 561-562.
[427]
Trial counsel in Ilioski v R attacked the honesty of the relevant witnesses and suggested they were biased or had a motive to give evidence against the applicant and/or favourable to the prosecution. In those circumstances, the absence of a warning was of less significance and the ground of appeal relying on s 116 was not made out.
In Marius Hawell's case, the opposite is true. The issue before the jury did not concern ZG's honesty but her accuracy. It was argued that she was mistaken in identifying "male number 6" (being Marius Hawell on the prosecution case) as the person who entered the bedroom, just as she was mistaken in saying that she left the flat with him. The latter mistake was established by CCTV footage which showed that Marius Hawell left the flat at a different time and that ZG left with others.
In those circumstances, a direction under s 116 was mandatory. While the submission made at the trial was regrettably diffident, counsel raised the possibility of a warning under s 165 on the basis that the prosecution case was dependent on the reliability of the identification evidence adduced from ZG. In those circumstances, and given the importance of the evidence and the history of the criminal law in terms of mistaken identification, it would be wrong to invoke rule 4.15 and refuse leave to argue this ground.
Before leaving this issue, one further submission advanced by the respondent should be addressed. It was submitted that directions to the jury about ZG's identification evidence "may well have worked to [the applicant's] detriment". The respondent suggested that the direction may have drawn attention to the fact that ZG and Marius Hawell were in the apartment together for about two hours in total, from 8:03pm to 9:49pm and from 10:07pm and 10:56pm. It may also have reminded the jury that ZG said she was unsure what was happening at the critical moment and that she "turned around and, and I looked". Further, there was no evidence that the lighting was deficient or that there was anything obstructing the witness's view.
[428]
Whether the error is categorised as an error of law or as a miscarriage of justice for the purpose of s 6(1) of the Criminal Appeal Act, this was unquestionably a "material" error as described by the High Court in Brawn v The King and MDP v The King. The absence of a direction as to the dangers of identification evidence, both generally and in the particular circumstances of the case, could realistically have affected the jury's reasoning in determining Marius Hawell's guilt in relation to counts 10 and 11.
Ground 4 in the appeal of Marius Hawell must be upheld and his convictions on counts 10 and 11 should be quashed.
[429]
Unreasonableness of the convictions of Maurice Hawell, Andrew David and Marius Hawell in respect of the Friday night counts (grounds 7 and 8 in the Maurice Hawell appeal, grounds 5 and 6 in the Andrew David appeal and ground 5 in the Marius Hawell appeal)
[430]
Each of the applicants argues that the verdicts on counts 2-6, concerning the events of Friday night, are unreasonable or unable to be supported having regard to the evidence. The applicants adopted each other's submissions in support of the relevant appeal grounds. Maurice Hawell also argues that the conviction on count 1, which only concerns him, was unreasonable or unable to be supported having regard to the evidence.
Marius Hawell also argues that his conviction on counts 10-11 are unreasonable or unable to be supported having regard to the evidence.
The general principles governing these grounds of appeal are well established. It is necessary for this Court to review the evidence identified by the parties as germane to the issue identified by the applicants: R v ZT (2025) 281 CLR 137; [2025] HCA 9 at [11]. It is for this Court to determine whether it was "open" to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen(1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen(2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen(2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen(2020) 268 CLR 123; [2020] HCA 12 at . This Court must make its own independent assessment of the sufficiency and quality of the evidence. The Court must first ask itself whether it has a doubt about guilt and, if so, whether that doubt is capable of being resolved by the jury's advantage in seeing and hearing the witnesses give evidence: at [82].
[431]
"It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable'... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. ..." (Footnotes omitted.)
[432]
A number of the arguments advanced by the applicants focus on inconsistencies or discrepancies in the evidence of MF and DM. In that context it is appropriate to note the principles recently articulated in Smith v R[2025] NSWCCA 104 by Bell CJ (Harrison CJ at CL and Hamill J agreeing):
[433]
"[38] Inconsistencies or discrepancies may exist at several levels. They may be internal inconsistencies or discrepancies within a complainant's evidence, as between a complainant's evidence and other testimonial or documentary evidence, or, where there are two (or more) complainants (such as in the present case), as between those complainants. Inconsistency may also arise in the case of a jury's verdict on multiple charges: see MacKenzie v The Queen[1996] HCA 35; (1996) 190 CLR 348 at 366-7; [1996] HCA 35; Nguyen v R[2017] NSWCCA 145 at [34]- [48]; Holt v R[2021] NSWCCA 140 at [103]- [112].
[39] The 'mere existence of discrepancies or inconsistencies' in witnesses' evidence is 'scarcely surprising or unusual' and does not necessarily compel a conclusion that a jury's verdict is unreasonable: Hanna v R[2023] NSWCCA 182 at [24], [85]. Far from it. As was held in RA v R[2020] NSWCCA 356 at [15]:
[434]
It is not the law that the establishment of inconsistencies in the evidence in a criminal trial of itself establishes that the jury ought to have entertained a doubt. The resolution of such matters is their quintessential role.
[435]
[40] A court of criminal appeal, in affording a measure of deference to the jury, must also bear in mind that juries are 'well able to evaluate conflicts and imperfections of evidence': MFA at [96]; see also Gray v R[2020] NSWCCA 240 at [100]; AJ v R(2022) 110 NSWLR 339; [2022] NSWCCA 136 at [101]. By way of example, this Court in Hamilton (a pseudonym) v R[2020] NSWCCA 80 at [69] concluded that:
[436]
Whilst there were, unsurprisingly, inconsistencies and imperfections in the evidence, none of them, whether taken individually or as a whole, suggest that the jury misused its very considerable advantage over this Court in having seen and heard the witnesses give their evidence and that it should have had a reasonable doubt concerning the applicant's guilt."
[437]
In the present matter, for the reasons developed elsewhere in this judgment, there were problems with the directions given (and not given) to the jury which are likely to have affected the reasoning of the jury in significant respects. That presents a potential complication in terms of assessing the significance of any doubt that this Court entertains about the convictions, and understanding if, notwithstanding the doubt perceived by this Court, the convictions may be explained by the advantages enjoyed by the jury: see, for example, Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R[2016] NSWCCA 202 at [278]- [279], [303]; SY v R[2018] NSWCCA 6 at [81]- [82]; IW v R[2019] NSWCCA 311 at [224].
In the circumstances of the present matter, it is apparent from the verdicts of guilty that the jury accepted the evidence of DM, MF and MS to be credible and reliable. The attitude of the jury in that respect cannot be wholly disregarded or explained away on the basis that it was the result of an error in direction. As the applicants submit, the erroneous direction in relation to the reliability of Matthew Anoih's evidence is significant in this respect because it will have impacted on how the jury assessed the credibility and reliability of DM and MF, in circumstances where Mr Anoih gave a different version of events. In that sense the erroneous direction may have infected the jury's approach to the conclusions that this Court is reassessing. The same may be said of the error relating to the failure to sever the counts and allowing the evidence of the events on the Friday night to inform an assessment of the factual circumstances on the Saturday night, and vice versa. However, we are not satisfied that this is a situation where this Court can, in determining whether any doubt perceived by this Court is a doubt which the jury ought to have experienced, wholly disregard the advantages enjoyed by the jury in assessing the credibility and reliability of the witnesses. To do so, in the circumstances of this case, would be to undermine the functional or constitutional demarcation between the province of the jury and the province of the appellate court: at [38].
[438]
The verdict of guilty in relation to count 1 was open to the jury (Maurice Hawell only)
[439]
The jury was presented with diametrically opposed sworn evidence given by MF and Maurice Hawell about the events that were the subject of count 1. On Maurice Hawell's account, he did not enter the bedroom when he spoke to Matthew Anoih and MF and did not approach MF or touch her in any way. Mr Anoih's evidence was generally consistent with Maurice's account. On MF's account, after Maurice had asked if he could join her and Matt, he walked over and stood next to the bed, with an erect penis. He proceeded to put his hand on her left thigh up near her groin. Both MF and Matt pushed Maurice's hand away and Matt told him to get out and go away.
As Maurice Hawell correctly submits, the conviction on count 1 depended on the jury accepting MF's evidence about Maurice having touched her thigh without consent. This is consistent with the general assumption to be adopted in a conviction appeal of this kind that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [38]. If the jury accepted Maurice Hawell's account of what had occurred, or if that evidence raised a doubt about what occurred, then plainly it could not accept MF's account. We do not find that there were any relevant features of the evidence that mean that the jury ought to have entertained doubt about MF's evidence regarding count 1.
Maurice Hawell submits that MF's evidence was unreliable for a number of reasons. He emphasises that the Crown had opened on the basis that MF was expected to give evidence that Maurice Hawell had "tried to" reach under the sheet, whereas the evidence MF later gave was that Maurice did reach under the sheet and touched her thigh, up near her groin. Maurice Hawell also suggests that there was equivocation in the Crown's closing address about whether MF had accurately recalled whether the incident occurred during or after MF had sex with Matthew Anoih. We do not see these matters as casting any significant doubt on the reliability of MF's evidence. MF's own evidence on these points (as opposed to the submissions of the prosecutor) has not been demonstrated to have changed in these or other material respects.
Maurice Hawell suggests that MF's evidence that she met DM back out in the kitchen, after she had finished having sex with Mr Anoih, is at odds with evidence from DM about her having entered the room where MF was with Mr Anoih. We do not perceive any relevant inconsistency in this respect, let alone one that has a significant bearing on the credibility or reliability of MF. In response to a question about whether she saw anybody after she got dressed and went back into the kitchen, MF said that she met DM. In giving that answer MF did not say, or imply, that she had not also seen DM before that point.
[440]
The verdicts of guilty in relation to counts 2 and 3 for Maurice Hawell and Andrew David were open to the jury
[441]
In relation to the balance of the counts concerning Friday night, the applicants in developing their arguments have differentiated between the counts involving DM (counts 2 and 3) and those involving MF (counts 4-6). We have divided our analysis accordingly.
In relation to counts 2 and 3, on the issue of DM's consent the applicants emphasise the following aspects of the evidence:
[442]
(1) DM's initial statement to police, eleven days after the alleged offences, that she gave "full consent" to the sexual intercourse. In the same statement DM said "at first I was like, this is scary, but soon started to enjoy myself". The applicants urge that this is to be understood in circumstances where DM accepted at trial that she was under an obligation to tell the truth to the police. To the extent that DM sought to explain the first statement by saying that she did not want to participate in a court process, she also acknowledged at trial that the statement might have led to a court process even if she wanted to avoid one;
(2) DM's concessions in her evidence at trial that she was acting as though she was consenting and enjoying herself during the sexual activity;
(3) DM's conduct back at The Cambridge Hotel, after leaving the apartment. DM accepted that she did not tell any of her friends that she had been sexually assaulted but instead told them that she had participated in an orgy, made a joke of the whole thing and laughed about it. Consistently with DM's evidence, her friends gave evidence that DM seemed fine when she was back at the hotel; and
(4) inconsistencies between the complaints later made by DM to family members and the account she gave at trial. The account that DM gave to her father did not include an account of being sexually assaulted in the same room as MF by a number of men. It included the detail that DM gave consent to one man but then did not consent to the two or three men who then entered the room. She gave a different version of events again to her stepmother, that was also inconsistent with her evidence in court. This included reporting that she had held MF's hand and said something to her about wanting to get out of there. DM told her stepmother that she was distressed and crying when the men left. DM said she had sex with five men, which was not something she stood by at trial. Many of those details do not align with the account she gave at trial. DM also failed to disclose to her stepmother that she had engaged in consensual group sex.
[443]
In terms of proof beyond reasonable doubt of the mental element of the alleged joint criminal enterprise and the mental state of each accused in respect of DM, the applicants emphasise the following aspects of the evidence:
[444]
(1) DM's willing engagement in group sex with Maurice Hawell and Andrew David shortly before the group sex that was the subject of counts 2 and 3. Each involved penile-vaginal intercourse and oral sex at the same time;
(2) Andrew David's conduct in his first sexual encounter with DM, in which he asked for permission before removing his pants. DM gave her consent for him to remove his pants. Andrew David also asked DM to perform oral sex on him, which she agreed to;
(3) in that earlier encounter DM had shown her sexual interest in Maurice Hawell and Andrew David and her interest in engaging in group sexual activity. This is also said to be relevant to the question of whether the Crown had proved that DM did not consent to further group sexual activity shortly thereafter in the middle bedroom;
(4) DM's concessions in her evidence at trial that she was acting as though she was consenting and enjoying herself during the sexual activity;
(5) DM's conduct in the apartment generally; and
(6) the lack of clarity in the evidence about who pushed DM onto the bed and whether each of the applicants was aware of this.
[445]
In relation to how DM behaved after the incident in the middle bedroom, the applicants acknowledge that it is unhelpful in an argument of this kind to say that the complainant's credibility is undermined by suggestions that she did not behave in a way that is consistent with how a victim of sexual assault is expected to behave: Zhao v R[2024] NSWCCA 229 at [192]. Despite that, the applicants say that the behaviour of DM after the alleged assault still gives reason to doubt DM's version of events.
In addition to emphasising the principles in Zhao and the warning against importing preconceptions about how a victim of sexual assault might be expected to act, the Crown, as noted above, argued that submissions about what DM said to her friends and family about what had occurred must be understood in the context of the mandatory direction that experience in the courts has demonstrated that complainants may behave in different ways and it is common for inconsistencies in accounts to exist. The Crown also submits that there is nothing implausible about an 18 year old making light of events immediately after they occur, and only coming to appreciate later the impact of what has occurred.
In terms of the discrepancy between the account given by DM to her grandmother and the account given to her father, the Crown points out accurately that DM did not plan to tell her father at the time but was only drawn into this when she overheard her grandmother mention it to her father. This was an unexpected disclosure as DM had asked her grandmother not to say anything to her father. On her father's observation, DM was crying and struggling to communicate with him.
The Crown characterises DM's general conduct throughout the episode as bespeaking a significant degree of naivety and inexperience. In relation to discrepancies between DM's evidence and the account given by DM's stepmother of what DM had told her, the Crown submits that caution needs to be exercised because of the possibility of details being mis-remembered in the retelling. There is also the overarching possibility that ongoing embarrassment affected what DM told her relatives about the various details of what had occurred.
[446]
"Q. You told me just a moment ago that you didn't say anything to anyone in the room to indicate that you weren't consenting?
A. Correct.
Q. And you didn't do anything to indicate that you weren't consenting?
A. Correct.
Q. Is that why you put in your first statement to the police that you gave full consent?
A. Yeah.
Q. Because you'd acted in a way as though you were consenting?
A. Yes."
[447]
It was a matter for the jury (and now for this Court) to take those matters into account as part of the overall assessment of the credibility and reliability of DM's evidence. We do not perceive a doubt about DM of a kind that ought to have been perceived by the jury and cannot be explained by the advantages enjoyed by the jury.
We do not accept the submission that DM's conduct within the apartment is relevantly inconsistent with her version of events or gives reason to doubt the Crown case about what occurred in the middle bedroom after DM says she was pushed onto the bed. The applicants say that the actions of DM after she had consensual sexual intercourse with Maurice Hawell and Andrew David show that she was comfortable in the apartment and having a good time. Accepting that this was the effect of the evidence does not expose any tension with DM's account of what happened at a later point in time in the middle bedroom.
The most that could be said is that there is some tension between the evidence of DM and MF having a good time during this period and the evidence MF gave that when she and DM went into the bathroom after their respective consensual encounters they talked about feeling uncomfortable and wanting to go back to the hotel. We do not perceive any significant inconsistency in that respect. It is plausible that in private the two young women may have expressed some feelings of discomfort about being in the apartment which was full of men, and a desire to return to the hotel, notwithstanding that they were otherwise having positive interactions with the men and apparently having a good time. The behaviour does not give us reason to doubt the credibility of DM or the reliability of her account of what occurred subsequently when she was grabbed and subjected to unwanted sex acts in the dark.
Maurice Hawell in his submissions draws attention to the "live photo" taken by DM in one of the bedrooms after the sexual activity that was the subject of counts 2-7. This is a form of "photo" which in fact takes the form of a short video recording. It shows MF sitting on the bed in no apparent distress as DM filmed. DM was asked at trial if she took the footage because she was having a good time and she answered "I don't know". She was then asked "Was it just a bit of fun" and she responded "Yes". DM agreed that she and MF appeared to be laughing in the live photo. Maurice likewise points out the photo which was taken shortly afterwards in the open living area, showing MF and DM with George Anwiya, where DM is shown smiling and laughing.
[448]
(1) DM was grabbed in the dark and pushed onto the bed;
(2) DM was pinned down by someone sitting on her face with knees on her arms so that she couldn't move;
(3) though DM may have felt that she had to pretend to be enjoying herself, that feeling was not converted into any words or actions or sounds;
(4) MF asking where Matt was and the response from multiple people in the room.
[449]
The applicants submit that the last point is of no particular significance when it comes to DM, given that DM had no particular reason to be concerned about MF asking "Where's Matt?" and DM's evidence was that although she heard someone say "I'm Matt" more than once she did not know who said it or if it was the same person. We agree with the applicants' submission in this regard. In relation to DM, the evidence about MF's question and the response from a person or persons in the room is not a matter of particular probative force. Otherwise the points identified by the Crown are significant in casting light on the jury's assessment of the account given by DM. For the reasons we have outlined above, we are not of the view that the evidence raises the prospect of DM exhibiting such signs of enjoying herself, in the circumstances she was in, to give rise to a reasonable doubt on this basis.
The applicants downplay the significance of the evidence of DM having been pushed onto the bed. We do not find the arguments of the applicants on this point to be persuasive. It is correct, as Andrew David submits, that the evidence did not descend to the detail of exactly how hard DM was pushed, which part of her body was pushed, who did the pushing and who saw each of DM and MF being pushed. But it does not follow that this aspect of the evidence loses all probative force, in relation to either the lack of consent or the formation of a joint criminal enterprise. The bedroom in question was relatively small and the men who were in it were necessarily in close proximity to each other. On DM's account of events, she and MF were entering the room to retrieve their phones and not for the purpose of an intimate liaison with anyone. None of the men in the room would have had reason to believe that DM and MF were coming into the room to have sex with them. DM entered the room and she was immediately grabbed and physically forced onto the bed. No words were spoken by anyone. Each of DM and MF was then physically immobilised by men sitting on them. The jury was entitled to infer that each of the men in the room, even if they did not do the pushing themselves of DM or MF and even if they did not directly witness each individual push, knew that DM and MF had been manhandled onto the bed.
The applicants emphasise the darkness of the room, on the Crown version, which they say would have impeded anyone in the room from perceiving what was occurring, which in turn affects the assessment of whether it was established beyond reasonable doubt that each of the applicants had knowledge of the lack of consent. The applicants point out that on MF's evidence she did not know that DM was lying beside her on the bed until the episode had finished and the men had left. While there is some force in those submissions, they overlook the difference between the position of the men and their ability to perceive what was happening around them, and the position of DM and MF. The complainants were, on their evidence, pinned on their backs and held down, including by men sitting on their faces. MF described having "someone's bum, like their arsehole" in her face. DM said that the man putting his penis in her mouth was "covering my face with his body". The ability of DM and MF to perceive what was happening around them was considerably more constrained than the ability of the men in the room. On the account of DM and MF, the men were in physical control and moving in and around the room.
[450]
The verdicts of guilty in relation to counts 4-6 for Maurice Hawell and Andrew David were open to the jury
[451]
Much of what we have said above in relation to counts 2 and 3 applies also to the appeal grounds concerning counts 4-6, where MF was the complainant. This includes our conclusion that the jury can be taken to have accepted as credible and reliable the evidence of MF and DM and rejected the accounts of Maurice Hawell and Matt Anoih.
The applicants argue that in circumstances where the events are said to have occurred in the dark and the Crown did not attribute particular acts to particular perpetrators, the evidence was insufficient to establish both absence of consent and knowledge of the absence of consent (going also to the formation of the alleged agreement). We have dealt above with the circumstances of the events happening in the dark and the perception of those events by people in the room.
The applicants say that these deficiencies in the Crown case are particularly important when it comes to particular acts by MF, such as MF having physically resisted fellatio and physically resisted having a penis placed in her hand. However, we do not consider that the Crown case depended upon demonstrating that every participant in the alleged joint criminal enterprise being aware of everything that occurred within the room, including these particular acts of resistance by MF. The jury's role was to assess the overall effect of the evidence about what was happening in the room, in circumstances where it could not be established what any given individual perpetrator was doing at a particular time and which precise acts they witnessed. The overall effect of the evidence in relation to MF was that she was physically resisting the acts that were being performed on her, and giving no verbal or non-verbal indication of consent. One man was sitting on her face and the man who was engaged in penile-vaginal intercourse had hold of her knees and was holding her legs open. As we have explained above, DM was, like MF, physically restrained, with a man sitting on her face and pinning her knees down, gave no verbal signs of consent and it was open to the jury to conclude that she was also not in a position to convey any non-verbal signs of consent. The evidence of acts of physical resistance by MF were part of an overall mosaic of evidence that was probative of an absence of consent and an awareness of that absence of consent by the men in the room, whichever particular role they were performing.
[452]
(1) MF was grabbed in the dark;
(2) MF was forced onto the bed;
(3) MF physically resisted the attempt to insert a penis into her mouth;
(4) MF physically resisted the man who was trying to get her to touch his penis;
(5) MF's legs were held open;
(6) MF asked where Matt was, which prompted more than one voice to say "I'm Matt", which showed the men present hiding who they were.
[453]
As for the last point, contrary to the submission of the applicants MF gave evidence that more than one person said "I'm Matt". Her evidence was that after she yelled out "Where's Matt" multiple people responded by saying "I'm Matt" and then another voice said "I'm Matt". This is significant in terms of demonstrating an atmosphere where multiple men were looking to confuse and disorientate MF, and all the men in the room must have understood that this was occurring. The applicants submit that, given MF's concession that she felt like she had to pretend that she was enjoying herself, she may have asked where Matt was in a tone that did not bespeak distress or non-consent. It is improbable that the question did not provide some indication of distress, given MF's evidence that she asked about three or four times where Matt was. In any case, even if there was ambiguity about the tone used by MF in asking the question, the response from multiple people is significant in terms of confusing MF and not assisting to answer her in a sincere way.
There is a difference between the accounts of DM and MF that the applicants say is significant in assessing the credibility and reliability of each of them. DM gave evidence at trial that she was sure that she was holding MF's hand while they were in the bedroom, and she had also told her grandmother and stepmother that the girls were holding hands. MF did not give evidence of holding hands with DM and on her evidence she was not aware that DM was in the room with her until the end of the sexual assault. The applicants also emphasise that on MF's account her hands were otherwise occupied. One was being used to fight off the man on her face and her right hand was being grabbed by the man who was trying to put it on his penis.
We do not consider this to be a significant discrepancy that causes us to doubt the credibility or reliability of one or both of MF and DM. If DM was mistaken in her recollection of holding hands with MF, that would not itself be a major discrediting conclusion. It is also possible, given the number of things happening and people in contact with MF, that DM accurately recalled holding hands with MF, at a time when MF's hands were free, but MF was unaware that DM was holding her hand. Although MF gave evidence about what she did with her hands from time to time, her evidence does not suggest that her hands were occupied at every moment by fending off the men.
[454]
(1) on MF's account of her private interactions with DM in the period following the incident and before police contacted them, neither MF nor DM described what had occurred as a sexual assault. The applicants say that this tends to suggest that MF recast the events as non-consensual in hindsight; and
(2) in her first police statement MF made no mention of the events that came to be the subject of count 7 (alleged penetration of her anus), or of light coming into the room and looking to the right and seeing Matt Anoih's face. These were significant omissions and under cross-examination MF could only say that she could not remember.
[455]
We are not satisfied that these points, either viewed in isolation or in combination with other considerations, give rise to a doubt of a kind that cannot be explained by the advantageous position of the jury.
[456]
Marius Hawell - Identification in relation to counts 2-6
[457]
There is a distinct issue which arises on the appeal brought by Marius Hawell against his conviction on counts 2-6. The issue is whether the evidence established that Marius was in the room in question and one of the men participating in the sexual assault of DM and MF. A variation on that submission is that the evidence did not establish that Marius Hawell was in the room throughout the events constituting counts 2-6, such that it could not be established that Marius Hawell was privy to the events relied upon by the Crown to establish knowledge of the lack of consent and participation in the joint criminal enterprise.
One issue relevant to this ground of appeal is the evidence about the number of men in the bedroom. Marius Hawell submits that in circumstances where, on the complainants' accounts, the men were moving around and swapping positions there was insufficient evidence to prove beyond reasonable doubt that there were four men in the room. In our view it was open to the jury, if it accepted the evidence of DM and MF, to proceed on the basis that there were four men in the room for at least some of the time that the offending took place.
DM was asked about having told her stepmother that there were five men involved. She explained that she had made an assumption that there were five because there were two men on her, and she remembered seeing three men on MF. In response to a question seeking to clarify this DM said that there was a time when there was one man penetrating her vagina, and apparently no one sitting on her upper body. That was the point at which she saw three men on MF. It is not possible to align the timing of events described by each of DM and MF in a way that would have allowed the jury to conclude exactly what was happening to each at any precise moment in time. Each of DM and MF described being effectively pinned down by the combined effect of one man sitting on her face while another man was penetrating her vagina. With the exception of the reference to DM's evidence described above (when she saw three men on MF while only one was on her), neither DM nor MF described a period of time when there were men in the room, sexual activity was continuing but they had only one person on them, or none. It was open to the jury in accepting the evidence of DM and MF to conclude that there were four men involved in the sexual activity in the middle bedroom with DM and MF.
[458]
Unreasonableness of the conviction of Marius Hawell in respect of the Saturday night counts (ground 5 in the Marius Hawell appeal)
[459]
Marius Hawell argues that the verdicts of guilty on counts 10 and 11 are unreasonable or unable to be supported having regard to the evidence.
The Crown case against Marius in respect of counts 10 and 11 was that he entered the room in which Maurice Hawell and Andrew David were sexually assaulting MS. Based on what the Crown alleged Marius saw once in the room, it was contended that it should be inferred that he then acquired knowledge that MS was not consenting, and became a party to the joint criminal enterprise to carry out such a sexual assault. By entering the room, using the light on his phone to illuminate the sexual activity and remaining in the room, the conduct of Marius was an act of encouragement and participation in a joint criminal enterprise with Maurice and Andrew David. On the Crown case, what Marius saw when he entered the room and illuminated the sexual activity was Andrew David with his penis in MS's vagina and Maurice Hawell was sitting on MS's face, with his knees in her shoulder and his penis in her mouth.
The primary submissions advanced for Marius raised a question as to the adequacy of the evidence of his participation in a relevant joint criminal enterprise, assuming he entered the room. However we would uphold ground 5 on the alternative basis (developed in the reply submissions of Marius Hawell) that it was not open to the jury to find that the Crown had established beyond reasonable doubt that Marius was the person who entered the room and observed Maurice Hawell and Andrew David having sex with MS. There is in those circumstances no requirement to analyse the primary argument advanced on his behalf.
We have explained above in detail the problems with the identification evidence given by ZG. In her first statement to police of 23 April 2022 ZG described seeing male 2 lead MS by the hand into the bedroom which ZG described as bedroom number 2. It appears to be common ground that the person ZG described as male 2 was Maurice Hawell. ZG proceeded to say in the police statement that MS and male 2 were in the bedroom for a short amount of time before male 6 entered that bedroom and closed the door. She said male 6 exited the bedroom and then re-entered it. ZG said in the statement that male 3 was moving around the open living area and she was unsure if he did or did not enter the relevant bedroom.
ZG said in that statement that she could identify male 6 from his physical appearance (eg body shape and height). Critically, ZG said in the statement that she left the apartment on foot with male 1, male 2, male 6 and male 7. In other words, she said that she left the apartment with the person who ZG had seen entering the room where Maurice Hawell was with MS.
[460]
Admissibility of telephone intercept (ground 6 in Marius Hawell appeal) and sentencing appeal by Marius Hawell (grounds 7 and 8 in Marius Hawell appeal)
[461]
In light of our conclusions above, the convictions of Marius Hawell must be quashed and acquittals entered. In the circumstances, it is unnecessary to consider ground 6, which raises no issue of principle, nor the grounds of appeal raised by Marius Hawell against his sentence.
[462]
For the foregoing reasons, each of the appeals against conviction should be allowed and the conviction of each applicant, and on each count, must be quashed. In the case of Marius Hawell verdicts of not guilty will be entered on counts 2, 3, 4, 5, 6, 10 and 11. Subject to any other reason for his detention, of which the Court is unaware, Marius Hawell is entitled to immediate release. In the case of Maurice Hawell and Andrew David there will be an order for re-trials. However, whether these men are put to trial again will ultimately be a matter for the discretion of the Director of Public Prosecutions.
The Court makes the following orders:
[463]
(3) The convictions of Maurice Hawell on counts 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of the indictment are quashed.
[464]
(4) There be a re-trial or re-trials, as appropriate, of Maurice Hawell on counts 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 of the indictment.
[465]
(5) The matter is remitted to the District Court arraignment list on 12 December 2025 at 9.30am.
[466]
(8) The convictions of Andrew David on counts 2, 3, 4, 5, 6, 8, 9, 10 and 11 of the indictment are quashed.
[467]
(9) There be a re-trial or re-trials, as appropriate, of Andrew David on counts 2, 3, 4, 5, 6, 8, 9, 10 and 11 of the indictment.
[468]
(10) The matter is remitted to the District Court arraignment list on 12 December 2025 at 9.30am.
[469]
(13) The convictions of Marius Hawell on counts 2, 3, 4, 5, 6, 10 and 11 of the indictment are quashed and in their place a verdict of acquittal on each count is entered.
[470]
The Court notes that by virtue of his acquittal on all charges Marius Hawell is entitled to immediate release from custody.
[471]
[1] All quotes from the trial are reproduced in this judgment as they were transcribed.
Meanwhile MF had entered the bedroom next door with Matthew Anoih. MF and Mr Anoih proceeded to have consensual sex, with the bedroom door closed but not locked. MF's evidence was that after she and Matt had finished having sex, the man who had previously been wearing the white shirt (ie Maurice Hawell) entered the bedroom naked. MF, who was also naked, pulled the blanket up over herself. According to MF, the man asked if he could join MF and Matt and said "I'm a better root than Matt". MF could not remember exactly what she said, but she knew she said "No". The man stood next to where MF was on the bed. He had an erect penis. MF's evidence was that he reached down and put his hand on her thigh. He then touched her on the top of the left thigh near her groin. MF grabbed his hand and pushed it away, saying "I don't like want that". Mr Anoih did the same thing, pushing away the man's hand and saying "get out" and "go away". The man left the room. This conduct was the subject of count 1, charged against Maurice Hawell alone.
MF got dressed and went back out to the kitchen where she met DM. Mr Anoih came into the kitchen wearing his underwear. Another friend of Mr Anoih's was in the kitchen, fully clothed. The man who had entered the bedroom and touched MF was in the kitchen with no clothes on. DM and MF at one point went into a bedroom to brush their hair. According to MF, they then spent several minutes together in the bathroom and had a discussion about how they were uncomfortable and wanted to return to The Cambridge Hotel. DM's evidence was that they did not have a conversation in the bathroom and DM could not remember whether MF asked or told her anything. When they left the bathroom they returned to the bedroom where they had been brushing their hair in order to collect their phones.
MF said that when she walked into the bedroom the light was off and she felt a swarm of people around her. She felt hands on her arm and she was forced onto the bed, on her back. Nothing was said by anyone at that time. The lights remained off and the room was dark. DM's evidence was that the light had been on when they first entered the room but someone turned it off.
MF had been clothed, but around the time she was pushed onto the bed her shirt was untied, her skirt was pulled up and her underwear was removed. MF felt that everything happened at once. A man was over MF's face and MF could see his rectum in her face as he was trying to put his penis in her mouth. MF had her hand up trying to stop the man putting his penis into her mouth. This conduct is the subject of count 4. MF yelled out "Where's Matt?" and multiple people in the room responded "I'm Matt". MF asked three or four times where Matt was.
At the same time as someone was trying to put his penis in her mouth someone was holding MF's legs open and put his penis in her vagina. This is the subject of count 6. Someone else standing next to the bed was grabbing MF's right hand and trying to get her to pull on his erect penis. This is the subject of count 5. MF could not see who was doing these things as it was too dark. MF could not do anything about the person inserting his penis into her vagina as she had someone holding her right hand and her left hand was being used to fight off the person sitting on her face. Her legs were bent upwards and she felt like someone had hold of her knees.
MF's right hand was released, at which time the other man was still on MF's face and a penis was still in her vagina. Moments later MF felt something being inserted into her anus. Nothing was said before that happened. This hurt MF and she yelled out "ouch". This is the subject of count 7 (being the count on which the jury did not return a verdict before being discharged). Under cross-examination MF was challenged about various aspects of her account of these events but adhered to her evidence. She was asked whether she thought she had to pretend that she was enjoying what was happening in the bedroom to which she said "Yep", but she said that she did not pretend that she was enjoying it.
After the feeling of penetration into her anus MF saw some light come from the bedroom door and Mr Anoih came next to her. She asked him to get his friends off her. Mr Anoih spoke to his friends in a different language and they all left. Mr Anoih asked her if she was okay. MF asked where DM was, not thinking that DM was in the room. DM was in fact on the bed next to MF and replied "I'm here".
DM's account of her own experience once she and MF entered the room was that after the light was turned off she was pushed onto the bed, and she lay on the bed on her back. Somebody then started to penetrate his penis into her vagina. This act is the subject of count 2. There was no conversation before this occurred. While the penis was in her vagina, another man was kneeling on DM's arms, which she could not move. The man put his penis in her mouth. This is the subject of count 3. The man did not say anything before doing this and nothing was said by DM. DM's evidence was that she was not consenting to that activity. Nor was there any other conversation she could hear. She did later hear MF say "Where's Matt?" and more than once someone said "I'm Matt". DM could not remember if it was the same voice each time saying "I'm Matt".
Under cross-examination DM said that while she was in the room she felt like she had to give the impression that she was enjoying herself and that was what she did. She said that this pretending did not involve laughing or saying particular things.
When the sexual assault in the bedroom was finished MF and DM left the bedroom. MF observed three naked males between the bedroom door and the front door. There was a man who was fully clothed and standing in the kitchen. While she and DM were at the front door another man walked out of the third bedroom (on the far left). He was described as really tall and skinny. On the prosecution case this was Mr Enwiya, who was unwell and had been otherwise confined to the bedroom on the left.
MF's evidence initially was that she left the apartment with DM and Matt and returned to The Cambridge Hotel. After being shown a portion of CCTV footage she accepted that "Matt's mate" was also with them.
MF and DM reunited with the rest of their friends at The Cambridge Hotel. MF said that she told them about having sex with Matt, but kept "the whole group thing to myself" because she was "embarrassed and ashamed of what had happened". Under cross-examination MF agreed that she did not tell any of her friends at the hotel about being sexually assaulted at the apartment. It was put to her that she had said, in response to a question of what she had got up to, "Yeah, we fucked. It was really good with Matt, but there was like an orgy happening". MF said that she may have said that, but she could not remember. TG gave evidence that MF had said something to that effect. MF saw Matt Anoih later on the dance floor where they kissed. They exchanged contact details. MF said that she still wanted to get to know Matt because she thought he was cool and funny. They later exchanged messages and MF sent nude photographs of herself to Mr Anoih.
DM said that she spoke to her friends as a group at the hotel about what had happened at the apartment. Her evidence was that she said "that we had an orgy" and MF had agreed. She described all the friends in the group including MF as laughing. DM said she described it as an orgy because that was the best way to describe what had happened.
ZG said that she was getting along well with Zaid Haddad. ZG kissed him and he suggested they have sex in front of the others in the communal area. ZG declined. At one point during the kissing another man, either male 2 or male 3, slid underneath ZG and performed oral sex on her. Another man (either male 2 or male 3) attempted to kiss her at the same time. These events happened quickly and ZG indicated with her words and body movements that she did not want the kissing or the oral sex to happen. She and Zaid Haddad then went into a bedroom at his suggestion. They had consensual sexual intercourse. At some stage the door opened and male 2 and male 3 entered the room. ZG told Zaid Haddad that she did not want them there, but they remained in the room. They eventually left, but returned, coming in and out of the room. At some point both male 2 and male 3 touched ZG in an attempt to initiate group sex. Eventually Zaid Haddad was more assertive and told them to leave, which they did.
ZG later dressed and returned to the communal area. At some point the man she had identified as male 2 left the apartment. He later returned with MS. ZG observed them go into the bedroom with male 2 holding her hand and leading her in there. Zaid Haddad gave evidence that the male who returned with MS and took MS into the bedroom was Maurice Hawell.
Once they were inside Maurice Hawell closed the door. MS was standing near the door. After using his phone, Maurice stood and walked over to MS. He pushed her chest area with both hands, causing her to be left on the bed on her back. Maurice removed all of his clothes. He then turned off the light. He got on top of MS and began kissing her mouth and all over her neck. MS was feeling anxious and scared and said that she was not kissing him back. Maurice removed some of her clothes and began playing with her breasts for several minutes. The door opened and the light was turned on. Maurice was still on top of MS and she was unable to move in order to see if someone had entered the room. The light was turned off and Maurice continued kissing her for some time. After another period of minutes he got off MS and turned the light on. MS then became aware for the first time that a second man was present. On the prosecution case the man was Andrew David. He was naked and lying face down on the floor next to the bed.
Maurice Hawell then turned the light off and said "threesome" in a loud voice. MS said "What? No". Andrew David then sat on MS's face with his knees pressing into her shoulders. MS was not able to see anything and it was dark, though not pitch black. Neither MS nor Andrew David said anything at the time he sat on her face. Maurice Hawell got on top of MS and put his penis in her vagina. This is the subject of count 9. Neither he nor MS said anything at that time. Andrew David was at this time putting his penis into MS's mouth. This is the subject of count 8. MS was unable to move while this was occurring. She was unable to speak because the penis was in her mouth. This continued for about five to ten minutes.
At some stage the bedroom door opened and another male walked in. On the Crown case that was Marius Hawell. He stood at the end of the bed and spoke in a language other than English to the man who was sitting on MS. The light remained off. While they were speaking, Maurice Hawell swapped positions with Andrew David. Maurice Hawell then put his penis in MS's mouth (which is the subject of count 10) and the other man put his penis in her vagina (count 11). The knees of the man MS knew as "Jonathan" were on MS's shoulder and he was sitting on her face. The third male who had entered the room was at the end of the bed. At some point after that man had entered the room MS saw a flashlight come on from a mobile phone. That caused MS to turn and ask if the man was filming, to which Maurice Hawell said "No".
At some point Andrew David stopped penetrating MS's vagina and left the room. Around the same time the third man who had been at the end of the bed also left. Maurice Hawell remained on MS's face and continued to insert his penis into her mouth, before eventually masturbating himself and ejaculating onto MS.
On the Crown case, a joint criminal enterprise between Maurice Hawell and Andrew David was formed when they were both in the bedroom and Maurice Hawell said "threesome" and MS said "What, no." A joint criminal enterprise incorporating Marius Hawell was formed when he walked into the bedroom, observed what was going on, including the positioning of the other two accused over the complainant, and remained in the room.
David Babanour, one of the friends in the group staying in the apartment, gave evidence that Maurice Hawell had sex with MS, and Andrew David had told him he had been in the room with them for a time. Zaid Haddad gave evidence that during the period when MS and Maurice Hawell were in the bedroom he saw Andrew David go into the bedroom. He saw him come out again, he estimated about a minute later.
ZG's evidence was that during the time that she was in the kitchen after having sex with male 1 she did not see anyone else go into the bedroom that MS and male 2 (ie Maurice Hawell) entered. After they entered that room, she definitely saw male 6 go in and out of that bedroom. ZG was asked about the movements of male 3. She said that she believed male 3 entered that bedroom but she did not actually see him doing so. She said that she was aware of male 6 entering the room because she was unsure of what was happening so had turned around and looked. Male 6 was fully clothed when she saw him entering and leaving the bedroom, and wearing the clothes he had been wearing earlier in the night.
ZG gave evidence at trial that the first person she saw come out of the bedroom was male 6, who then returned into the room, before coming out again.
In her statement to police ZG had said that male 3 was moving around the common area and she was unsure if he did or did not enter the bedroom that MS had entered. ZG accepted in cross-examination that her memory at trial did not accord with what was in the statement in that regard. Her recollection at the time of trial was that male 3 was in the room with MS, but "it's an unreliable memory to be honest. I, I, I got the sense that he was in there but I don't have much of a memory". She indicated that this sense was not based on having seen male 3 walk into the room after male 2 and MS.
After the sexual assault MS got off the bed and put on her clothes. She left the bedroom and went to the front door to leave. She spoke to ZG, who asked if she was ok. MS said that she just wanted to leave. MS told a friend about what had occurred and then called police using the emergency number. MS was taken to hospital and explained to a doctor how she had been sexually assaulted.
Within half an hour of MS leaving the apartment, ZG also left. She said that she went with male 1, male 7, male 2 and another. The group was headed to The Cambridge Hotel, but split up and ZG went to Finnegan's in an Uber with male 7.
ZG was contacted a few months later by police. She attended a police station and made a statement. After making the statement, there was an occasion when ZG was shown images on a computer at the police station and asked if she could identify any of the males out of a group of pictures. ZG said that she recognised the men she had met that night. ZG's evidence identifying particular individuals is analysed in more detail below in the context of dealing with the appeal brought by Marius concerning the failure to give a warning under s 116 of the Evidence Act 1995 (NSW).
According to the agreed CCTV timeline, David Babanour, Zaid Haddad and ZG exited the apartment at 10.56pm and walked down Parry Street towards Wood Street. A few minutes later, at 11.02pm, ZG walked onto King Street with David Babanour, Zaid Haddad, Maurice Hawell and Andrew David.
In her statement to police in April 2022, ZG had said that she left the apartment with male 1, male 2, male 6 and male 7.
At trial ZG was shown a compilation of CCTV footage which showed her walking away from the apartment with a number of males. She identified the male that she appeared to be talking to as male 3. Three males appeared on the video walking behind her. ZG said that male 7 was wearing a black suit jacket and had his arm around male 2. ZG thought that the third of the three males was number 4 or 5. ZG said that she had thought that male 1 was in the group when she was walking away from the apartment, and her recollection was that he stopped to talk to some other women.
ZG was cross-examined about the inconsistency between her police statement and the evidence given in chief at trial. She was asked whether she had in fact left the apartment with male 6 and she said "I'm less sure of that now". She confirmed that male 6 was the person she saw going in and out of the room.
Paragraph 21 of the statement says that Detective Palmer had shown ZG some CCTV images. When asked about this at trial ZG confirmed that she was shown CCTV still images or screenshots, rather than footage, and they were different from the CCTV footage shown to her at trial. The review of the CCTV images for the purposes of the statement occurred about a month before ZG participated in the photo identification parade process.
Maurice Hawell said that he thought DM was agreeing to sex because she was moaning when they were having sex and they had just had sex in the other room. He said he thought MF was consenting because she had told him that she would have sex with him if DM joined in. He also said that while MF was performing oral sex on him and no one was having contact with DM, DM had yelled out "Can someone have sex with me?" That prompted Maurice Hawell to insert his fingers into DM's vagina. DM did not object in any way. She was moaning and everyone was laughing and appeared to be enjoying themselves. He said that during the group sex MF's anus was not penetrated by anything at any time.
Maurice Hawell said that while he was in the room he did not hear anyone saying "Where's Matt?" and he did not hear anybody claim to be Matt. After the sex was finished he observed DM and MF laughing and having a general discussion and socialising. They seemed fine and happy.
Maurice Hawell said that he was not part of any agreement or understanding to have sexual intercourse with either DM or MF, irrespective of whether they consented or not, or irrespective of whether they agreed with it.
It was noted that the fault element of sexual intercourse without consent relied upon in these proceedings was knowledge or recklessness as to consent, this varying between counts. It was submitted that the use of the words "with or without consent" directly before the reference to the mental element which the Crown sought to prove could be expected to have been understood by the jury to refer to the physical element, when agreement as to lawful conduct - namely, consensual sexual activity - cannot legitimately be the subject of a joint criminal enterprise.
The term "with or without consent" was submitted to be one that should not be understood as meaning recklessness, which is concerned with the mental element of the crime not its physical acts; and that, if it could be taken as so meaning, would leave unaddressed the requirement specified in Osland for agreement as to the physical element of the offence.
The second major problem in the directions was submitted to be the inclusion of recklessness in the description of the agreement; namely "to sexually touch and/or sexually assault the two complainants with or without their consent, knowing they were not consenting and/or reckless to that fact." It was submitted that it may be expected that the definition of recklessness provided in the directions regarding the element of knowledge of absence of consent (which included both advertent and inadvertent recklessness) would have been used by the jury when considering whether the joint criminal enterprise was established. There was no other definition provided.
Partly by reference to the decisions of the High Court in The Queen v LK(2010) 241 CLR 177; [2010] HCA 17 ("LK") and Ansari v The Queen(2010) 241 CLR 299; [2010] HCA 18 ("Ansari"), it was submitted that recklessness as left to the jury was erroneous. As the offence under contemplation has a physical element of absence of consent, for there to be an agreement to commit it, an accused person would have to mean (as the object of the agreement) that one or more of the parties have sexual intercourse with a person who is, in fact, not consenting, and accordingly recklessness was submitted to be problematic. It was submitted to be illogical and impermissible to speak of an agreement to commit sexual assault (intending to have sexual intercourse with someone believing they are not consenting) where the agreement is in fact to something less; namely, to be reckless as to the absence of consent.
It was submitted that although technically a Crown case based on a contingent agreement to have sexual intercourse with a person without their consent, if they did not consent, could be envisaged, it would be very difficult to articulate and inapplicable in the factual circumstances of this case where the Crown case was of spontaneously formed joint criminal enterprises. The circumstances on the first night, where there had just been consensual group sexual activity between the same people, was said to render the concept of a contingent enterprise particularly inapposite. It was further submitted that the directions provided to the jury did not come close to addressing such a situation.
Relevant to both the first and second major criticisms, it was submitted that providing the "with or without consent" description of the joint criminal enterprise for counts 10 and 11 in oral and written directions, even though the Crown did not rely on recklessness (as to Mr David and Maurice Hawell) further undermined any reason to interpret "with or without consent" as relating to the mental element of recklessness. It was submitted that this would constitute an additional problem for the Crown, as the Crown did not rely on recklessness for these counts.
Also relevant to both of these issues, it was submitted that the only permissible way to direct the jury in relation to the physical element in this case (in relation to counts 10-11, for example) was by explicitly (and only) using the words "without their consent", such as:
It was submitted that a similar issue was determined by this Court in KA v R[2015] NSWCCA 111; (2015) 251 A Crim R 308 ("KA"). It was submitted that the effect of the direction in the present matter was relevantly the same as the direction quoted at [13] in KA, and the same conclusion should be reached as that reached by Simpson JA at [109]; namely, that it was perfectly plain that the directions conveyed the requirement for the Crown to prove the complainant was not in fact consenting.
During oral submissions Senior Counsel for the respondent submitted, after addressing paragraph [93] of Osland, that the relevant actus reus here was "having sex and, in the circumstances, where the complainant in fact does not consent." It was clarified that, by reference to Osland, this meant that the agreement the Crown was required to prove was simply to have sexual intercourse, this then crystallising into a crime when the complainant did not in fact consent. The situation was said to be analogous to the issue resolved by the High Court in The King v Rohan(2024) 280 CLR 288; [2024] HCA 3 ("Rohan"), in that there was no need in that case for the agreement to include knowledge that the child was underage. It was submitted that, as in Rohan, so in this matter, it would be incongruent to require proof, for the person made liable pursuant to principles of joint criminal enterprise, of knowledge of that which was not required for proof of guilt for the principal offender. It was submitted that in contrast to a case where men are looking to drag someone off the street where there would be knowledge to a high degree of certainty that the complainant was not consenting, in a case such as the present, or as may more commonly come before the Courts, with pre-existing relationships including sexual interaction, the knowledge that someone is not consenting may only crystallise at the point they are not consenting.
The respondent articulated as a secondary or fall-back position the availability of the statutory deeming of knowledge in the circumstances here relied upon.
Regarding the directions as to recklessness, it was submitted for the respondent that:
The focus of directions as to the elements for the "respective accused" and state of mind of the "respective accused" was contended in the respondent's written submissions to be appropriate; as what the trial judge was explaining to the jury was the mental elements of the substantive offences, such that it was entirely apposite to refer to the respective accused rather than to the agreement. However the oral submissions of Senior Counsel for the respondent expressed a degree of agreement with the submission for the applicants that the directions were not in fact required, but contended that they did no harm and cannot have been problematic. It is understood that the respondent later agreed, upon being asked, that the Crown was required to prove beyond reasonable doubt that the physical perpetrator of each alleged act did have knowledge of lack of consent in one of the applicable statutory senses, as otherwise the act was not being done in furtherance of the joint criminal enterprise.
The written reply for Mr David emphasised that the trial judge never used the phrase "regardless of consent" and that those words in legal directions are, at times, associated with explaining part of the mental element of advertent recklessness: for example in KA at [13]. These words were there directed to the mental element of the offence and employed to explain advertent recklessness, not the physical element of the offence. It was submitted that substituting the words "regardless of consent" for "with or without consent" in the joint criminal enterprise direction for counts 2-7 would result in removal of any reference to the physical element, and exposed the risk of the jury relying on an agreement to be "reckless", "knowing they were not consenting and/or reckless as to that fact." This was submitted to be incoherent.
The applicants described the issues considered by the High Court in Rohan as different, because of the Victorian legislative provisions that are quite specific about the terms of agreement, and because knowledge of the age of the person was not an element of the offence. The statutory context was thus submitted to be very different.
Regarding KA, it was submitted for Mr David in reply at [29] of his written submissions that Simpson J's statement at [109] was based on a "fair reading of the directions", which should be taken to mean the directions as a whole in the context of that case. It was noted that Meagher JA observed at [16] that the impugned direction did not contradict previous directions and "plainly concerned the crime of having sexual intercourse without her consent." It was further noted that his Honour identified at [18] the necessary agreement as being "party to a continuing understanding with EZ that they would have sexual intercourse with the complainant without her consent, either knowing that to be the position or being reckless as to the fact of consent".
KA was further submitted to not share the complexities of the present appeal, including undisputed consensual sexual conduct, an allegation of a continuing state of mind, and two joint criminal enterprises over two separate evenings involving three different complainants and multiple sexual acts. Further and fundamentally, the impugned directions in KA were not expressed in the same way as the joint criminal enterprise directions in this case. The words "with or without consent" formed no part of the direction in KA, such that the Court in KA was not required to grapple with the way in which a jury would approach directions framed as they were in the present appeal. Nor, it was submitted, were the issues raised in this appeal the subject of any consideration in that case. It was submitted that the argument recorded at paragraph [99] of KA was about the knowledge of a secondary participant, which was not applicable to these proceedings which are concerned with the terms of an agreement.
The applicants' position was that KA was clearly distinguishable insofar as recklessness was mentioned in it, because KA's case was that he was unaware of the sexual intercourse that was the subject of the alleged agreement and therefore not a party to its agreement. This did not give the Court cause to engage in any detailed analysis of whether recklessness was sufficient to establish a joint criminal enterprise.
It was submitted for the applicants that Chishimba is distinguishable from the present appeal because the point taken in Chishimba involved an issue concerning the identity of the perpetrator whereas the present appeal is concerned with the content of the agreement. Further, Macfarlan JA's observation that recklessness is sufficient mens rea to establish a joint criminal enterprise was obiter dicta, as a ground asserting unreasonableness of the verdict was upheld and an acquittal was entered, and the observation was made reasonably briefly without any engagement with the issues raised in this appeal - a point the respondent accepted during oral argument.
The offence of aggravated sexual intercourse in s 61J of the Crimes Act 1900 (NSW) was defined at the time of these alleged offences in the following terms:
At [149] in Lee, Button J described the proposition that the subjective realisation of the prospect of absence of consent for advertent recklessness is not merely a theoretical understanding, by referring to "recklessness, in the sense of foresight of a (non-trivial) possibility of lack of consent. This state of mind is the first meaning of recklessness within (b). It accords with the completely orthodox meaning of recklessness discussed in such cases as R v Coleman(1990) 19 NSWLR 467, Blackwell v R, and Castle v R."
For reasons to which we will come, we regard there to be a difference in the viability of reliance on advertent and inadvertent recklessness in the circumstances of this case.
As outlined above, the Crown contention that the direction provided requiring proof that the complainants did not in fact consent was adequate, referred to KA and Rohan. For the reasons that follow, those decisions do not support the proposition advanced by the Crown.
KA was convicted of two counts of aggravated sexual assault without consent, the aggravation arising from the commission of the offences in company. KA appealed his convictions, including in relation to count 1 by which the Crown alleged that the co-accused (EZ) forced the complainant to have oral sex with him while KA assisted by holding her head. The complainant was a 14 year old girl who was heavily intoxicated, and led away from her friends by EZ and the applicant. When she fell over the applicant was alleged to have held her upright on her knees, and held her head whilst EZ inserted his penis in her mouth, while she tried to move her head away. The Crown alleged that KA was a party to a joint criminal enterprise with EZ. KA denied being present when the act took place and his case was that he was unaware that it occurred.
Ground 2 complained that the trial judge failed to properly direct the jury as to joint criminal enterprise in relation to count 1. Simpson J (with whom Meagher JA and Wilson J agreed, each with additional reasons) refused leave to argue ground 2, request for redirection not having been made at trial. Her Honour also provided reasons as to why the ground should be rejected. Her Honour held at [129] that when regard was had to the manner in which the trial was conducted, and the real issues in the trial, it was quite apparent that there was no call for any different direction.
The resolution of the ground in the particular case was highly dependent upon the issues at trial. Those will be referred to briefly. However the clear statements of general principle articulated in KA are contrary to the position advanced by the Crown in the current appeal.
The directions of the trial judge quoted at [96] included the following, after numerous references to agreement to commit a crime, for the purposes of establishing a joint criminal enterprise:
This is fundamentally different to the offences under consideration in this appeal, which require proof beyond reasonable doubt of knowledge of absence of consent. Putting aside issues of "unreasonable" belief in consent, of no application to the counts based on joint criminal enterprise, the prospect that an applicant or the applicants believed the complainants were consenting would have made him or them not guilty of any individual act of sexual intercourse without consent he perpetrated (had he been able to be charged on the basis of identification of his individual act), and additionally not guilty of being party to a relevant joint criminal enterprise. In Rohan, subjective belief that the relevant girl was over 12 or over 16, as the case may be depending on the particular charge, had no impact on individual liability, which is why it could have no impact on liability by agreement.
Gageler CJ, Gordon and Edelman JJ at [28] rejected the Crown contention that proof of an "agreement ... to commit the offence" required proof only that the accused entered into an agreement with another person to commit the acts or omissions which constitute the offence. It was held that the term "offence" must be read the same way through the relevant provisions, and meant the criminal offence by reference to "the concatenation of factual elements (physical, mental and circumstantial) that give rise to criminal liability, rather than solely the physical acts", citing Kingswell v The Queen(1985) 159 CLR 264; [1985] HCA 72 at 292, and The Queen v Barlow(1997) 188 CLR 1; [1997] HCA 19 at 9. However it was held that this did not mean that a person who "enters into an agreement ... to commit the offence" intends, knows or believes in the existence of all those elements. Their Honours held at [29]-[30] that as proof was required that the person and another agreed something would be done or omitted to be done - to commit an offence - it was essential to identify what acts and omissions the parties agreed upon and what the person's state of mind was when they entered into the agreement. The acts of supplying cannabis to the particular girls, and engaging in sexual activity with the particular girl, were criminal acts. The accused had the necessary state of mind to agree to commit the offences and the prosecution did not need to prove any further knowledge or intention beyond the fact that he agreed (for example in relation to the penetration charge) to sexually penetrate the particular girl, intending that the particular girl be sexually penetrated. The critical matter was the agreement to intentionally sexually penetrate a particular girl (not any person), which act was a criminal offence.
Their Honours also held at [41] that knowledge of all of the essential facts which made what was done a crime, as required by Giorgianni v The Queen(1985) 156 CLR 473; [1985] HCA 29 ("Giorgianni"), was apposite to s 323(1)(a) which, like aiding and abetting, is a form of derivative liability; but was inapposite to s 323(1)(c), which, like the doctrine of joint criminal enterprise, is a form of primary liability.
In a separate judgment Gleeson and Jagot JJ agreed that in relation to the drug supply charges, the Crown did not have to prove that the respondent knew that the person to whom the drug was supplied was under a particular age. The agreement, arrangement or understanding to be proved required only agreement, arrangement or understanding to supply a drug of dependence to the child where that child was, in fact, under that prescribed age. In the sexual penetration charge the Crown did not have to prove that the respondent knew that the person being intentionally penetrated was under the age of 12 years, but agreement, arrangement or understanding to intentionally penetrate the child where the child was in fact under 12. By way of contrast, their Honours stated at [77]:
In the circumstances as alleged in this case, if one or more of the applicants did not think about consent at all these were quintessentially individual states of mind. This would make each such man liable for his own act of sexual intercourse, if it was in fact done without the consent of the complainant (and had he been able to be identified). But it cannot establish the fundamental bedrock of joint criminal enterprise liability of agreement to commit a crime, or arrangement amounting to a mutual understanding, so as to be consistent with truly mutually embarking upon a crime, to make him responsible for the acts of other men. The scenario raised by the Crown of the legitimate prospect of two people (the two convicted brothers in Ansari) agreeing that a third party may commit a crime recklessly, so as to amount to conspiracy, is of no application to the present proceedings.
As noted above in outlining the parties' submissions, the decision of Macfarlan JA in Chishimba (James and McCallum JJ agreeing) addressed recklessness in the context of an alleged joint criminal enterprise to commit sexual assault in company. His Honour rejected one aspect of one ground of appeal pursued by the applicant Mulenga which was that the trial judge erred in relation to his directions to the jury regarding joint criminal enterprise as those directions related to recklessness.
The applicant Mr David was correct to describe this reasoning of Macfarlan JA in Chishimba as obiter. His Honour considered at length a ground that the verdicts were unreasonable and unable to be supported by the evidence and determined it before stating at [160] that "As the convictions on Count 1 must be quashed for the reasons given above, the correctness of the directions that the trial judge gave does not arise for determination." See also his Honour's introduction at [5].
The Crown case was that the complainant, who was a heavily intoxicated fifteen year old girl put to sleep in a room of the applicant Makasa's house, woke up with one man having penile vaginal intercourse with her and a number of others present in the room. It was the Crown case that the intercourse commenced when she was asleep, and known by all men to be asleep, and that after she woke up she stated that she did not want it, and was crying. All three applicants were convicted in relation to this offence, count 1. There were further alleged acts thereafter which resulted in acquittals. Mr Makasa was also convicted of sexual intercourse with a person under the age of 16 in relation to events the following day, which were not the subject of appeal.
As the parties in the present appeal agreed, the discussion of the ground regarding the direction on recklessness was very brief. The impugned direction is quoted at [165] of Chishimba and includes reference to advertent and inadvertent recklessness. It is not clear whether the direction was addressing the joint criminal enterprise or the commission of an offence in furtherance of it. Dealing with statutory predecessors of the currently relevant provisions, which provided that a person who has sexual intercourse with another person without their consent and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse, his Honour held at [169]:
Rohan
The trial judge's references to an agreement to have sexual intercourse, or sexually assault or touch "with or without" the consent of the complainant bore close similarity to her Honour's directions regarding the "state of mind" (see above at [94], and further below), which relied upon consensual as well as non-consensual activity. This amplified the prospect of the jury not understanding the significance of the need for agreement to commit the crime of sexual assault. The phrase can be seen to be similar enough to the respondent's suggestions of an intention to have sexual intercourse "regardless of whether the complainant was consenting" when understood in light of the oral submission for the respondent that the Crown was able to maintain liability in this case on the basis of an agreement to have sexual intercourse, which then crystallised into a crime when the complainant did not in fact consent. An agreement to have sexual intercourse with a person is not an agreement to commit a crime. The actus reus of this crime, which needed to be the subject of the agreement, was sexual intercourse without consent.
For the reasons given thus far, we are of the view that error has been established in describing the joint criminal enterprise by reference to sexual intercourse, assault or touching "with or without" consent (instead of "without" consent), inclusion of inadvertent recklessness in the definition of knowledge of absence of consent for the purpose of element 4, and inferentially in the description of the joint criminal enterprise.
The suggested direction quoted above at [104] was made in respect of counts where the Crown did not rely on recklessness. In relation to counts 2-7 the Crown did rely on recklessness, and we have found that advertent recklessness is capable of coherent inclusion in a joint criminal enterprise of the kind alleged in this trial. An equivalent direction relevant to counts 2-7 would then be along these lines:
KA
Lee
We agree with the submissions for the applicants that the focus on the elements in the trial, going through each element of each count from the perspective of "the accused" or "each accused", improperly shifted focus away from the agreement. On the Crown case in connection with the Friday night, with the exception of uncertainty as to Marius Hawell's presence and knowledge, there was no basis for distinguishing between counts and accused. For count 2 for example, the Crown was required to prove the terms of the agreement in existence and participation in it by the accused, that a person who was party to the agreement had the relevant sexual intercourse with DM, it was without her consent, it was in company, and was in furtherance of the agreement (which in effect meant that it was known to be without her consent in the sense discussed). As both the agreement and participation in it were in issue, it was essential that the jury understood the significance of the requirement for the Crown to prove beyond reasonable doubt both the making of the agreement (tacit or express) and the participation of each accused in its execution - here, in relation to counts 2-9, by sexually assaulting a complainant in the company of others in the joint criminal enterprise with him, and being present, and thereby offering encouragement, to the other men who were sexually assaulting a complainant in his company: cf. Huynh at [31]-[33], [37], [39].
The necessary directions in this trial also required significant modification of the standard directions (and those provided) regarding separate trials and verdicts as between accused and charges. On one view, the Crown in this trial was required to prove that each and every man was having sexual intercourse or engaged in sexual touching with a requisite mental element (except in relation to Marius Hawell for counts 10 and 11). This was essential in this particular case to prove the two joint criminal enterprises, and the participation of the applicants in them.
By way of demonstration, an issue arose during the hearing of the appeal as to the potential consequences of the Court holding a reasonable doubt about counts 2 and 3 because of the evidence of DM that she was pretending to enjoy herself. If the man or those men (who were not identified on the Crown case) were not intending to have sexual intercourse without consent, then this undermined the ability of the Crown to prove that there was an agreement between all men to have sexual intercourse with the two complainants without their consent, because his allegedly knowing sexual assault of DM was the evidence of his being a party to such an agreement and his participation in it. Without knowing who that man or those men were, there were significant problems for the Crown in relying on joint criminal enterprise to found liability for counts 4-7, as there may have been one or more accused who had no sexual intercourse with MF and did nothing to indicate their being party to and participating in an agreement to sexually assault both complainants. It was conceded by Senior Counsel for the respondent that a reasonable doubt about whether the man or men having sexual intercourse with DM knew she was not consenting, because of the evidence that she was pretending to enjoy herself, would cause a problem with the overarching joint criminal enterprise relating to the two women, relied upon by the Crown to prove all of counts 2-7.
Similarly, in the Crown pressing joint criminal enterprise liability for counts 8 and 9 (even though identity was able to be asserted), there is difficulty in seeing how one of Maurice Hawell and Andrew David could be guilty and the other not guilty. The jury was only able to attribute acts to each accused because they were acts done in furtherance of a joint criminal enterprise.
Relatedly, significant modification of the standard direction in accordance with Liberato v The Queen(1985) 159 CLR 507; [1985] HCA 66; De Silva v The Queen(2019) 268 CLR 57; [2019] HCA 48 arising because of the evidence given by Maurice Hawell was required. The possibility his account was true had consequences for all accused, not just him. It required acquitting him of count 2 not just because he had sexual intercourse that was consensual or he believed it to be so, but because this meant he was not thereby participating in a joint criminal enterprise to sexually assault the complainants DM and MF, and nor was count 2 done in furtherance of any such agreement (so all accused would be not guilty). It required acquitting him of count 3 because no such act occurred, and acquitting the other accused also. These two findings alone would already expose a fundamental problem with the joint criminal enterprise to have sexual intercourse with both women without their consent. However, further and more particularly, if there was any reasonable possibility his evidence regarding MF was true, he was required to be acquitted (as were the others) of count 4 because no such act as alleged occurred by MF occurred - only consensual oral sexual intercourse occurred, not the non-consensual attempt as described by her. All would have to have been acquitted of count 5 as no such act occurred. Count 6 is the most problematic, as although Maurice Hawell's evidence included an account of Andrew David having penile vaginal intercourse with MF (which Maurice Hawell believed to be consensual), and this would mean Maurice Hawell was not guilty of that count, Andrew David could potentially have been individually liable for sexually assaulting her. However where the Crown sought no finding beyond reasonable doubt that any individual performed any act on the Friday night, this was not available either, in the circumstances of this case.
This discussion of the modifications that were required to otherwise standard directions in this case does not address particular arguments put forward by the applicants, but rather their general contention that the summing up contained inadequate focus on the significance of this trial being prosecuted on the basis of joint criminal enterprise liability, and misconceived focus on assessing each count, element by element, by reference to each respective accused (with guilty verdicts flowing if such elements were proved, and not guilty verdicts flowing if they were not, on a case by case basis).
The applicants are also correct in contending that the direction regarding the potential for the guilt of an absent participant in a joint criminal enterprise had no place in this trial.
It was essential that the jury had explained to it what the Crown was required to prove, and the way in which it sought to prove this. In the particular circumstances of this case, in relation to each count, the Crown was required to prove beyond reasonable doubt that the complainant did not consent to the relevant act, and that all accused knew she was not consenting to sexual intercourse or actually realised she may not be consenting to sexual intercourse, but agreed that sexual intercourse should be had with her anyway, this coalescing into an agreement to have sexual intercourse with the complainant without her consent. For the charges arising from Friday night the Crown was not required to prove beyond reasonable doubt that each accused knew each and every act was occurring, but was required to prove that the accused knew enough or realised enough to prove they actually did form an agreement that sexual intercourse would be had with both women without their consent.
The legal proposition that it is the acts of the physical perpetrator for which a participant in a basic joint criminal enterprise is responsible, not his crimes, is not of significance in this case except in one respect to which we will return when considering the reliability of the verdicts. Unlike Mrs Osland's son, there was no prospect that an act of one of the men in having sexual intercourse with either MF, DM or MS could have been consistent with his having anything other than criminal liability for that act, while acting in accordance with the agreement or understanding to sexually assault or have sexual intercourse without the consent of such complainant. There was no evidentiary basis for considering the different men had differing reasons for entering the agreement to commit the crime, some of which may exculpate them, but not those they were in agreement with, who did not have such reason. No issues of mental incapacity for liability were in issue in this trial.
In conclusion, there was an error of law in the directions to the jury, within the meaning of the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), as explained in MDP v The King[2025] HCA 24; (2025) 99 ALJR 969 ("MDP") at [3], [9], [44] and [96]-[110], in the following respects:
On 2 August 2024, after the trial had completed, the trial judge provided written reasons for her ruling on 17 June 2024 refusing the severance application ("severance judgment"). The primary basis for refusing the application was that the Crown was alleging a "single joint criminal enterprise" which meant that the evidence of the counts on the indictment amounted to "transaction evidence": at [17], [23] and [25] of the severance judgment.
At the outset at paragraph [3], her Honour stated that "It was the Crown case that the accused were all part of a joint criminal enterprise to sexually touch or to have sexual intercourse with females with or without their consent."
In her reasons for judgment, her Honour described at [8]-[10] the essential basis of objection this way:
Medich
The respondent submitted that to the extent that there was any error in referring to a single joint criminal enterprise it was either a slip, or immaterial, because her Honour was correct to conclude that the evidence was cross-admissible on the basis of the connection between the events and the context of a continuing state of mind across the two evenings. It was submitted, by reference to the judgments in O'Leary of Rich J at 576 and Dixon J at 577 that the events "form[ed] inseparable features of a transaction consisting of connected events". It was contended that the evidence was cross-admissible to demonstrate a state of mind or intention to have group sex with women come what may, which persisted throughout the Friday and Saturday and connected the alleged offences. It was in this sense said to be circumstantial evidence relevant to the state of mind of each of the accused, indicating a single transaction. Proof of that state of mind was then submitted to be relevant to whether each applicant participated in the alleged joint criminal enterprises, and their states of mind for each count.
The respondent's secondary position was that the evidence was necessary to give the full and proper context for what occurred each evening.
Special leave to appeal was refused by the High Court. Latham CJ, Rich, Dixon and Williams JJ, in separate judgments, found the evidence of the events of the Saturday afternoon and evening to be admissible, for similar reasons. McTiernan J would have allowed the appeal and quashed the conviction. Starke J would not have allowed the evidence on the basis of the judgments to which we will now refer, but on a similar fact basis of admissibility.
Latham CJ held at 575 (footnote omitted):
Her Honour said at [116]:
A number of grounds of appeal, related to the admissibility and use of the evidence concerning count 2 (including conduct throughout 2010 in the lead up to it) in connection with count 1, were dismissed. The evidence the subject of complaint on appeal is summarised in the judgment of Hamill J at [883]. The Crown and trial judge had repeatedly informed the jury that the Crown relied on a single joint criminal enterprise to kill the deceased and intimidate his wife, initially formed between the applicant and Mr Gattellari, extended over time and coming to include others. Hamill J (with whom Bathurst CJ agreed) held at [887] that the evidence was admissible in proof of the murder charge in a manner that did not rely on tendency reasoning. Hoeben CJ at CL at [345] similarly held that the evidence was admissible not because of any tendency reasoning, but because it bore directly on the likelihood of the applicant having been party to the single joint criminal enterprise alleged by the Crown.
This decision, regarding a single joint criminal enterprise, does not support cross-admissibility in this case. The judgments of both Hamill J (with which Bathurst CJ agreed) and Hoeben CJ at CL quoted from the decision of this Court in Elomar at [364]-[369] as supporting admissibility on a basis not involving tendency reasoning. We are of the view that the case now before the Court was not one involving evidence capable of proving the sorts of enduring states of mind identified by Bathurst CJ in Elomar at [366]:
If there was any relevance in proof of such an intermediate state of mind it was thoroughly outweighed by the danger of unfair prejudice to the applicants. It detracted focus from that which the Crown was required to prove, and blurred lawful and unlawful activity.
Further, the Courts have through a series of cases endeavoured to prevent circularity in the process of tendency reasoning, where the evidence relied upon in support of the tendency involves charged acts: see Director of Public Prosecutions v Benjamin Roder (a pseudonym)[2024] HCA 15; (2024) 98 ALJR 644 at [26]- [27], [37], JS v R[2022] NSWCCA 145 at [40]. The standard of proof has the capacity to be undermined by engaging in a staged reasoning process. The difficulties may become more pronounced when there is a limited number of charges: see for example New v R[2025] NSWCCA 32 at [276], [296]-[297] per Dhanji J, Mitchelmore JA agreeing, Fagan J not deciding this point. The same problem arises if the issue is described as an intermediate "state of mind" rather than a tendency - how is the jury to be "satisfied" that it "existed", or "find it", to use her Honour's term in summing up (see above at [94] and [231]) without determining guilt of the respective charges?
There was the further significant problem of the jury engaging in coincidence reasoning in relation to the issue of whether the complainants were in fact not consenting, as initially contended for by the Crown as the basis for cross-admissibility. Where consent was in issue in the trial, the unfair prejudice in the prospect of the jury reasoning that the Crown case on absence of consent was enhanced, because the chances were low of three separate women on two different nights falsely stating that they were not consenting to the intercourse that was had with them, was profound. We are not suggesting that this gave the evidence significant probative value as coincidence evidence, nor that any probative value outweighed the danger of unfair prejudice. We are merely recognising the realistic risk of the jury reasoning this way. There was no direction capable of ameliorating this risk. The direction provided that, although the Crown case was heavily dependent on the credibility of the individual complainants, the Crown contended they were each supported by the "state of mind" evidence (see above at [232]) tended to encourage such process of reasoning.
Rational processes of reasoning can be articulated as to why the alleged events of Friday night could provide context for what was alleged to have occurred on Saturday night. On the Crown case the applicants gained knowledge from the events of Friday night of the relative ease with which women were attracted back to the apartment from The Cambridge Hotel, the relative rapidity with which such women would engage consensually in sexual activity, including group sexual activity, and the limited fuss, if any, made by DM and MF after being sexually assaulted. The amount of sexual activity occurring in the apartment on the Friday night was capable of informing Marius Hawell's expectation of what he might see when, on the Crown case, he opened the bedroom door on the Saturday night. The relevance of the evidence as context evidence in such ways was significantly outweighed by the danger of unfair prejudice to the accused, for the reasons outlined above. Further, there was no relevance in the alleged events of Saturday night as context for what allegedly occurred on Friday night.
There was accordingly an error of law in the admission of the evidence of the events of each night in support of proof of the allegations on the other night, within the meaning of the second limb of s 6(1) of the Criminal Appeal Act, as explained in MDP at [3], [9], [44] and [96]-[110]. The error was material in the sense we have discussed in relation to ground 1. Maurice Hawell's third ground of appeal, and Andrew David and Marius Hawell's grounds 2(a) should be upheld. We are not of the view that there was sufficient argument advanced regarding the admissibility of the evidence of ZG in relation to the allegations on the Saturday night to determine this point.
The inevitable consequence of the correct ruling regarding the cross-admissibility of the evidence would have been an order for separate trials pursuant to s 21(2) of the Criminal Procedure Act. The respondent agreed that the real issue regarding her Honour's failure to sever the indictment was the correctness of the decision regarding cross-admissibility. Although there was some debate as to the standard of appellate review in relation to a determination to not separate counts on an indictment, this result flowed necessarily from the wrong decision on the admissibility of the evidence, and is thus also a wrong decision on a question of law. Maurice Hawell's ground 2, and Andrew David and Marius Hawell's grounds 2(b) must also be upheld.
The result of upholding these grounds of appeal is that all guilty verdicts for all applicants must be quashed. The question of whether to order re-trials on those counts will turn on the resolution of other grounds of appeal.
The directions provided by her Honour regarding "state of mind" also involved a wrong decision on a question of law that was material, for the same reasons. We leave for the determination of the trial judge at any re-trial whether the evidence of ZG may be relevant as transaction evidence in connection with the events alleged to have occurred on the Saturday night, and if so the form of direction as to its use. All other aspects of the state of mind directions were erroneous, and these grounds should also be upheld.
It was submitted that the direction was "even more egregious" because, in the course of a legal "warning", the trial judge reminded the jury that the prosecution case was that Mr Anoih's account should not be accepted and then summarised submissions made by counsel for Marius Hawell that Mr Anoih's evidence was "wanting and unreliable". In this way, the s 165 direction was linked contemporaneously to the prosecution case and the case for the co-accused, while contrasting that with the submissions made by Senior Counsel for Maurice Hawell. It was submitted any warning should have been confined to those parts of the evidence which were said to support the prosecution's case against the accused. Maurice Hawell relied on cases such as Jamieson, Elliott & Blessington(1992) 60 A Crim R 68 ("Jamieson"), R v Baker[2001] NSWCCA 151 at [34] and R v Vu[2005] NSWCCA 266 at [36]. The direction did not differentiate between those aspects of Mr Anoih's evidence which were favourable to the accused and those relied on by the prosecution.
As to the anterior question of whether Mr Anoih fell into the category of witness caught by s 165(1)(d), Maurice Hawell relied on the fact that Mr Anoih did not receive any benefit from giving evidence, made no formal undertaking to give evidence and did not receive any indemnity against prosecution. There was no evidence of joint fabrication with the accused men and no suggestion of bias in favour of any party or a motive to lie. His evidence was challenged by the prosecution under a grant of leave pursuant to s 38 of the Evidence Act, and was within the capacity of the jury to themselves evaluate.
It was submitted that the prosecution did not rely on the evidence of Mr Anoih. On the contrary, to rely on MF as an otherwise truthful and reliable witness, the Prosecutor needed to invite the jury to reject the evidence of Mr Anoih and MF's evidence that Mr Anoih was not in the room. If the jury had a reasonable doubt that Mr Anoih was involved as one of the four men in the room, this would cast doubt on that part of the prosecution case that relied on there being four men involved in the sexual assault of MF and DM. The submission as to the number of people involved in counts 4, 5, 6 and 7 could not stand if Mr Anoih was not in the room at the time. However, even if he was in the room, that did not make Mr Anoih an "accomplice" as that term is understood in the context of s 165(1)(d). There were good reasons not to warn the jury that Mr Anoih's evidence may be unreliable because there was no reason for him to falsely implicate Maurice Hawell so as to diminish his own culpability: cf R v Ayoub at [16].
Maurice Hawell took the Court to that part of the transcript where counsel for the witness appeared in relation to issues arising under s 128 of the Evidence Act (the privilege against self-incrimination). The trial judge doubted the need for Mr Anoih to be legally represented and to challenge the basis of any objection he might take under s 128. That part of the transcript, with our emphasis, recorded the following exchange after the witness raised the possibility of objecting to a question asked by the Prosecutor:
HER HONOUR: But you don't have a standing in here, Mr Vuu. You are apparently his barrister.
VUU: Yes.
HER HONOUR: You can advise him as to whether he can seek an objection under 128. At the moment I'm struggling to understand why a 128 would be given. The alternative is that your client may be facing, by following this course, a contempt of court.
VUU: Yes, your Honour.
HER HONOUR: And you understand that he may then be charged with contempt of court and go into custody.
VUU: Yes, I--
HER HONOUR: So there's also things that you might need to advise him about that.
VUU: Yes, your Honour. If I could, could I perhaps have two minutes?
HER HONOUR: Well you can have overnight if you like because I'll adjourn now--
VUU: Well I think perhaps that would be wise.
HER HONOUR: --and maybe you can discuss and talk to Mr Crown but I don't know where you're going with this and you're running a real risk of him being held in contempt.
VUU: Your Honour, I--
HER HONOUR: So have a discussion with the Crown and see where this is going.
VUU: Yes, your Honour. Could I just place on the record he has given answers before. It is not an attempt in any way to manufacture a reason not to give an answer. It's simply that the advice, which I will not disclose, of course is that s 128 may apply here. I'll leave it at that.
HER HONOUR: Okay but that's for him - you can only give him advice, Mr Vuu.
VUU: Yes, of course.
HER HONOUR: You don't have a standing in this court.
VUU: Yes.
HER HONOUR: So you can advise him but you might want to advise him properly and I'm going to adjourn. 10am tomorrow.
VUU: May it please."
The respondent submitted that Mr Anoih was a witness to whom s 165(1)(d) applied based on the following parts of the evidence:
The issues around Mr Anoih's credibility were not complex and could have been determined by the jury in the usual way.
Turning to the content of the warning, we do not accept that the direction was modified to any significant extent or in such a way that the unfairness to the accused who relied on his evidence in support of their case was reduced. On the contrary, the warning was a strong one which suggested Mr Anoih was, on the prosecution case, "one of those four men involved in sexually assaulting the complainant" and that it was therefore "incumbent" on the jury to take into account a warning that "the evidence of such a witness may be unreliable". As part of this legal warning, the jury was directed further that Mr Anoih may have had "motives" (presumably to give false evidence) including hostility, revenge or a fear of being prosecuted and that "such a witness" might feel "locked into [a] version ... even if it was substantially untrue". There was little or no evidence to support those matters.
We also accept the submission that the dangers in providing the direction were exacerbated by the way in which the arguments of the Prosecutor and counsel for Mr David and Marius Hawell were referred to in the course of the direction and then contrasted with the submission made on Maurice Hawell's behalf. The final words of the direction - that the assessment was "a matter for you" - did little to reduce the impact of the warning.
Because of the absence of reasons, it is hard to determine the precise legal error which led to this misdirection. However, assuming it was a discretionary decision where House v The King applies, we are satisfied either that (i) the trial Judge failed to take into account a relevant consideration, that is, the "good reasons" identified by Mr Pontello SC at the trial for not warning the jury, or (ii) the decision was so unreasonable or unjust that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
A. Same photographs, but they were in a different order.
Q. Is it the case that the order's generated randomly when you start the program?
A. That's correct.
Q. In relation to [ZG], in the array that included Marius Hawell, did [ZG] select Marius Hawell?
A. Yes, she did.
Q. And was it recorded on the sheet by the officer that she said, 'Was male number 6'?
A. That's correct.
Q. The photograph of Mr Marius Hawell was not number 6?
A. No. Number 6 refers to the person who she outlined in her statement, or identified in her statement as male number 6.
Q. In relation to the photo array that included Mr Marius - sorry, Mr Maurice Hawell as one of the 20 images, did [ZG] select Mr Maurice Hawell?
A. Yes, she did.
Q. And was it recorded by the police officer, as said by [ZG] in selecting Mr Maurice Hawell, it's noted, 'Male number 2 in my statement'?
A. That's correct.
Q. And in relation to the third array that included Mr Andrew David as one of the 20 images, did [ZG] select Mr Andrew David?
A. Yes, she did.
Q. And was it reason for that selection recorded the words, 'Male number 3'?
She might be trying to truthful but she's wrong. The number 6 who she left with is not Marius, it might be - one possible explanation is - it's one of those people that she says she left with who entered the room or opened the door.
If there is no other explanation consistent with all the established facts considered together, then it would be open on you to convict the accused. If, however, you are not satisfied beyond reasonable doubt as to the essential fact to which I have referred, you must return a verdict of not guilty. You should also find the accused not guilty if looking at the established facts as a whole, you cannot conclude beyond reasonable doubt that he is guilty. As I have said, this would also be the position if, at the end of your deliberations, you are of the view that some other reasonable explanation exists for those facts, other than that the accused is guilty.
The Crown submitted you would find [ZG], and particularly, this part of her evidence to be credible and reliable. Mr Corish also points to the other evidence concerning that, that is, as I said, [MS]'s statement that there were three in. Zaid Haddad, who was the other person in the apartment at the time, stating he didn't go in and David Babanour's evidence in his text message stating that he didn't go into the room.
Mr Corish submitted, however, you would be wary and sceptical in relation to accepting her evidence in the way she answered questions. She was selective and, he said, crafty. He submitted she was wrong about seeing male 6, as she described, into the room, and that you would take into account her position at the kitchen bench with Zaid Haddad, facing the other way. His evidence, that he observed Andrew David go in and not the accused, Marius Hawell; that David Babanour does not remember seeing anyone go in, and that her evidence as to who she left with when leaving the apartment compared to the CCTV footage. You remember the submissions in cross-examination on that. So that is in relation to those aspects."
Domican
...
[98] The requirements of s 116 are described in pars [62]-[63] supra. They are concerned with the reliability of the identification evidence given in favour of the Crown, not with its honesty. Section 165 is expressly concerned with the reliability of certain types of evidence, including identification evidence. The whole point of the need for such warnings in relation to identification evidence is to ensure that the jury is made aware of the seductive effect of honest evidence, and of the fact that such evidence has led to proven miscarriages of justice when it has subsequently been shown to have been mistaken. The requirements of Domican v The Queen have been interpreted in that way: Regina v Heuston(1995) 81 A Crim R 387 at 399; Regina v Carusi(1997) 92 A Crim R 52 at 73-74; The Queen v Tran[2000] Qd R 430 at [4]. The same interpretation has been applied to ss 116 and 165 of the Evidence Act: Regina v Clarke(1997) 97 A Crim R 414 at 422-427, 433; Regina v Coe[2002] NSWCCA 385 at [67]; Hajje v Regina[2006] NSWCCA 23 at [82]."
These submissions are apt to distract from the nature and purpose of a direction under s 116 and the warning required or authorised by s 165. Such directions and warnings should focus on "the reasons for [the] need for caution" (s 116) and the "matters that may cause [the evidence] to be unreliable" (s 165(2)(b)). In other words, the judge is to direct the jury about things that may create doubts about the reliability of the evidence (both generally and in the circumstances of the case) rather than direct the jury's attention to matters that may persuade the jury that, despite the warnings, the evidence may be reliable. While the content of such directions will turn on the evidence and circumstances of the case, it is not an occasion for the trial Judge to highlight parts of the evidence favourable to the party who relies on the identification evidence. To do so would be to undermine the impact of the direction or warning and is contrary to the terms of ss 116 and 165.
The primary function of determining guilt or innocence has been entrusted to the jury as the tribunal of fact: R v Baden-Clay(2016) 258 CLR 308; [2016] HCA 35 at [65]. In a case of the present kind an appellate court dealing with a conviction appeal proceeds upon the assumption that "the evidence of the complainant was assessed by the jury to be credible and reliable. The Court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence - the Court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt": Pell v The Queen at [39].
The nature and extent of the advantage that a jury might have by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at trial and depending on the nature of the issues that arose at the trial: Dansie v The Queen at [17].
The jury's advantage is "not limited to its capacity to see and hear the witnesses give their evidence": Kim v R[2020] NSWCCA 288 at [58]. The High Court held in R v Baden-Clay at [65]:
Pell
Even where some error in the directions given (or not given) to the jury is identified, it is not the role of this Court to assume the primary responsibility of fact finding, which is the province of the jury as the representative of the community. It is to determine whether "upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen at 493; Dansie at [8]. The appropriate approach is to consider if it was open to the jury, properly directed, to be satisfied beyond reasonable doubt that the accused was guilty. Adopting that approach still involves making appropriate allowance for the fact that a jury, so directed, will necessarily enjoy advantages over this Court in a case of this kind.
Similar considerations arise when it comes to the identification evidence of ZG, which was critical to the conviction of Marius Hawell in relation to counts 10-11. We have concluded that a warning ought to have been given pursuant to s 116 of the Evidence Act. In circumstances where it was not given, but the jury evidently accepted the identification evidence of ZG, caution needs to be exercised when making allowance for the advantage of the jury in having heard the evidence and formed its own assessment of credibility and reliability. In approaching the question of whether it was open to the jury to be satisfied beyond reasonable doubt, on the basis of ZG's evidence, that Marius Hawell was the man who entered the bedroom, we consider the position of a jury properly instructed on the nature of identification evidence.
Maurice Hawell does point to the fact that MF did not tell anyone, in the aftermath of the incident, about Maurice having touched her thigh without consent. Given the context of the other events of the night, we do not consider this feature of the evidence to be particularly remarkable, or a significant reason to doubt the reliability of MF's account. The other sexual encounters between MF and the men in the apartment were more prolonged, significant and graphic. As addressed further below, when it comes to counts 2-6 there is an issue about the significance to be attached to MF having described to her friends participating in an "orgy" and her failure to mention that non-consensual sex had occurred. However, as the Crown submits, inconsistencies of this kind must be understood in the context of the mandatory direction that experience in the courts dealing with sexual offences has demonstrated that complainants may behave in different ways and it is common for inconsistencies in accounts to exist. For the purposes of assessing the conviction on count 1, the key point is that MF's failure to mention the particular, brief episode of unwanted touching by Maurice Hawell is not a significant omission given the other experiences she had and the way she did describe what had occurred to her friends.
We agree with the Crown's submission that it was within the competence of the jury to consider the significance to be attached to the failure to mention to her friends Maurice Hawell's actions in touching her thigh, in the context of a broader assessment of credibility and reliability informed by the considerable advantage of being able to see and hear MF give her evidence.
The evidence of Mr Anoih is relevant to assessing the overall strength of the evidence against Maurice Hawell on count 1. As noted above, there is a need for particular caution in considering how the jury approached the evidence of Mr Anoih, given the erroneous direction that was given about the reliability of his evidence. While the jury must necessarily have rejected Mr Anoih's evidence, that may have been because of the direction given about the reliability of his evidence rather than a reflection of the advantages enjoyed by the jury in assessing the evidence that it heard. We have explained above the approach that we take in that regard. A jury properly directed would still have needed to resolve a contest in evidence between Mr Anoih and Maurice Hawell on the one hand and MF on the other hand.
A properly directed jury would also have been entitled to doubt the credibility of Mr Anoih and the reliability of his evidence, even though it was erroneous for a direction to be given in that regard. He was, on the prosecution case, a direct participant in the group sex that was the subject of counts 2-7. While he was not likewise implicated in any criminality on count 1, his desire to minimise all of the conduct that he and his friends engaged in is a matter that the tribunal of fact is entitled to take into account in assessing his evidence. His account of commencing group sex with DM and Maurice Hawell after he had finished having sex with MF was, as the Crown submits, implausible. It involved DM coming into the room and initiating oral sex with Mr Anoih, while MF and Maurice Hawell began being intimate with each other, but without him being able to recall any conversation between them. On his account, after DM started performing oral sex on him he got up and left the room. This was, rather improbably, because he wanted to check on how George Enwiya was feeling. Mr Enwiya could not recall anyone checking on him.
In relation to count 1 we do not regard Mr Anoih's evidence as being so cogent or compelling as to suggest that the jury ought to have entertained a doubt about the evidence of MF and DM.
Finally, Maurice Hawell points to evidence of his good character. That is of no significant weight, in our view, in establishing that the jury, acting rationally, ought to have entertained a reasonable doubt about his guilt on count 1.
We agree with the submissions of the Crown in this respect. While there were discrepancies and inconsistencies between DM's evidence, the way she described events to her friends and the account she later gave to members of her family, we do not find that the discrepancies and inconsistencies are of such a significant kind as to cause us to doubt the credibility and reliability of DM in a way which the jury evidently did not perceive, but ought to have perceived. With her friends, it is plausible that DM wanted to make light of what had occurred, including out of a sense of embarrassment. It is also understandable that DM would have difficulty processing events, especially given the rapid progression from consensual sex with more than one man to an episode of non-consensual group sex. Embarrassment is also a plausible explanation for why the accounts she gave to various family members differed, including when compared with her evidence at trial. It is also notable, as the Crown submits, that much of what DM told her grandmother was reasonably consistent with core aspects of her evidence.
The significance of DM's conduct, including inconsistencies and discrepancies in her account, was a matter to be assessed by the jury. The credibility and reliability of her account in such circumstances was "patently before the jury, which was in a far better position to assess her evidence than the judges of this Court": Smith v R at [98] per Hamill J.
The same applies to DM's first statement to police which was inconsistent with her evidence at trial. DM gave an explanation of why she had initially told police that she gave full consent. DM explained that she had lied in her first statement to police because she did not want to go through the court process and wanted to forget it all. As the Crown submits, the cross-examination of DM also tended to suggest that when DM gave her statement to police she was acting under the wrong understanding that because she had not acted in such a way as to indicate non-consent she would be taken to have consented:
This behaviour is of more significance than the behaviour prior to the events the subject of counts 2-7. It is of a similar kind to the evidence about how DM and MF interacted with their friends once back at the hotel, in the sense of showing some light heartedness and an absence of distress in the aftermath of the alleged assaults.
However, each of the photos is no more than a snippet in time. The significance in revealing the true emotional state of DM and MF and therefore as an indication of what had just occurred ought not be overstated, particularly in circumstances where (as the jury was directed) victims of sexual assault react in different ways. Like the evidence going to the conduct and statements back at the hotel, the photographs are capable of being understood as consistent with young women making light of the events that had just occurred. The photos are relevant evidence, but do not themselves cause us to doubt the version of events given by DM and MF. Ultimately, the photos were evidence to be taken into account in the overall assessment of the credibility and reliability of these witnesses. That is how we have approached the evidence. We do not perceive the momentary evidence of post-event conduct to be so inconsistent with their accounts of events as to give rise to a doubt that the jury should have entertained.
In considering whether to accept the evidence of DM, and in considering the state of mind of the men who participated in sexual activity with her (and MF), it was relevant for the jury to consider that DM had been a willing participant shortly before in consensual group sex. That signified some sexual interest by DM in Maurice Hawell and Andrew David, and a willingness to participate in group sex. It was also relevant that in the context of the earlier encounter Andrew David had asked DM before he removed his pants. We have given those matters particular consideration in determining whether the jury, acting rationally, ought to have entertained a reasonable doubt about guilt on counts 2 and 3.
In doing so, we have considered the overall effect of the evidence, just as the jury was required to do. The significance of the earlier consensual encounter that DM had with Maurice Hawell and then also Andrew David is somewhat overstated by the applicants. On the version of events in the middle room given by DM and MF, the context for the subsequent encounter in the middle bedroom was very different. DM's group sex with Maurice Hawell and Andrew David began after she and Maurice went into that bedroom to engage in consensual physical intimacy, which then built up to intercourse and later the involvement of Andrew David. Words were exchanged throughout which indicated expressly the consent of DM at each key step.
On the version of events given by DM and MF, the encounter in the middle bedroom was completely unlike this from start to finish. DM and MF entered the bedroom to retrieve their phones, and not for the purpose of having a sexual encounter with anyone, let alone a group of men. On their account, they were both immediately grabbed and pushed onto the bed, and they were in the dark. No words were spoken by them or anyone else. DM and MF were then physically immobilised, and sexual acts were performed on them by multiple men. At no point did any of the men in the room do anything to confirm, verbally or non-verbally, that there was consent. If the jury accepted that DM and MF were credible witnesses in describing what transpired, the jury could reasonably have found that there was nothing in the earlier consensual encounters that would cause them to conclude that, since DM and MF consented to the first round of sex there is reason to doubt their claims that they did not consent to the second round of sex acts in the middle bedroom. It was also open to the jury to conclude that in those circumstances the men in question would not have had sound reason to think that because of the consensual nature of the earlier encounter the later encounter was also consensual.
That is also the proper context in which to weigh the applicants' submission about DM having acted as though she were consenting and was enjoying herself. Despite having conceded in her evidence that she acted as though she were consenting, DM did not give any evidence to suggest that she verbalised consent or gave any non-verbal indication of consent. She denied laughing and denied saying certain things as part of pretending that she was enjoying herself. The applicants submit that it must nevertheless be inferred that the pretending was manifested in DM's actions. However it is not clear from DM's account how she pretended to enjoy herself, in a way that would have been perceived by the men in the room. DM's evidence was that after entering the room she was grabbed, pushed onto the bed, and within minutes physically restrained by a man sitting over her face and pinning her down with his knees. Her legs were held. A penis was forced into her mouth. MF's evidence was that she was unaware that DM was on the bed next to her, which is inconsistent with any notion that DM was making any sounds consistent with consent. Given those conditions, the proposition that DM pretended to consent and pretended to enjoy herself, because she thought she had to, does not translate into an inference that DM must have exhibited signs that mean there must be a doubt that the applicants knew that she was not consenting or were reckless as to the absence of consent.
At trial the Crown Prosecutor emphasised the following matters going to the lack of consent by DM and the knowledge of the applicants of the lack of consent:
The degree of darkness is also overstated by the applicants. On DM's evidence, she could see shadows and movement on MF, so that it was not suggested on the Crown case that the room was so dark that nothing at all could be seen. Indeed the notion that it was so dark that the men in the room could not perceive physical resistance is itself implausible. The argument also overlooks the significance of the absence of any indications of consent, in the course of an encounter that began with wordless handling of the women and continued without any verbal indications of consent.
Maurice Hawell submits that the unreasonableness of the conviction on counts 2 and 3 is further demonstrated by his own evidence, and that of Mr Anoih which generally accorded with his. We have dealt with this to some extent above in determining the challenge to the conviction on count 1. The jury evidently rejected the evidence of both Maurice Hawell and Mr Anoih in relation to counts 2 and 3, and preferred the competing evidence of DM and MF. We do not perceive there to be any feature of the evidence of either Maurice Hawell or Mr Anoih that was so compelling as to raise a doubt which the jury ought to have entertained and where the jury's preference for the evidence of DM and MF cannot be explained by the advantages the jury enjoyed in making that assessment (even making an allowance for the fact that the jury in this case was acting under a direction about Mr Anoih's unreliability which ought not have been given).
As with count 1, we do not regard evidence of the good character of Maurice Hawell, bearing on both the likelihood of him having acted as alleged by the Crown and the unlikelihood of him giving false evidence, as giving reason to conclude that it was not open to the jury to convict him on counts 2 and 3.
The conclusion we reach in relation to counts 2 and 3 is that we do not perceive a reasonable doubt about the guilt of the accused which is a doubt which ought to have been perceived by the jury. Even if we had perceived such a doubt, this is a context in which the jury enjoyed (and any jury properly instructed would enjoy) a considerable advantage in being able to see both DM and MF give evidence, as well as Maurice Hawell and Matthew Anoih.
Unlike DM, MF did not make any concession in her evidence that she acted as if she was enjoying herself, although she did say that she felt like she had to pretend that she was. MF gave evidence directly rejecting the suggestion that she pretended to enjoy what was happening, laughed and talked to the other people who were involved through the incident. The applicants submit that notwithstanding there was no evidence that she acted in a way suggestive of enjoying herself, the state of mind of MF as revealed by this evidence casts a doubt on her evidence about physically resisting the man who was trying to put his penis into her mouth and the man who was trying to place her hand on his penis. We do not accept that this aspect of MF's evidence gives rise to a doubt of the kind that would justify interfering with the jury's verdict. MF's evidence about her physical resistance was specific and detailed. For example, in terms of trying to physically resist the person trying to put his penis in her mouth, MF said that she had her hand up trying to stop it and that "[h]e just kept trying to put his penis in my mouth as I was stopping him". It was open to the jury to accept that evidence as being reliable, even if it also accepted that in MF's own mind she felt some pressure to pretend as if she was enjoying herself.
In terms of proving that MF did not consent and knowledge on the part of the applicants that MF was not consenting, the Crown relied on the following circumstances:
The applicants also draw attention to the fact that MF gave certain evidence about what happened at the conclusion of events that was not supported by DM. On MF's account, she asked Mr Anoih to get his friends off her and Matt spoke to his friends in a different language. DM did not perceive this. MF's account of where she and DM went next also omitted reference to the point captured in the live photo recording which showed MF and DM in the bedroom with the lights on. We do not regard these relatively small gaps and differences in the respective accounts as reflecting in a significant way on the credibility or reliability of either witness.
As the Crown correctly submits, the applicants' arguments about discrepancies between the accounts of MF and DM should not be viewed in isolation from the various ways in which MF and DM corroborated each other's evidence. This included evidence about their respective positioning on the bed, each being pushed onto the bed, the men not having said anything, the darkness in the room and MF having been subjected to sexual assault by three men.
In relation to other conduct and comments after the events, the applicants emphasise that MF made no mention of being sexually assaulted and told her friends that everything was fine and she had participated in an "orgy". MF also continued to have affectionate engagements with Mr Anoih at the hotel and subsequently, including by sending nude photographs of herself to him. MF gave evidence that despite what had occurred with other men in the apartment she still had positive feelings about Mr Anoih and wanted to maintain contact with him.
As with the points raised in relation to DM's conduct and comments made after the events, these matters are relevant to the overall assessment of the credibility and reliability of MF. In the case of MF, there was a heightened significance because MF had engaged positively with Mr Anoih at the hotel and thereafter, in circumstances where she had told the police that when she and DM ran into Mr Anoih at the hotel they had left immediately because she wanted to forget about them. MF had also proposed returning to the apartment to stay with Mr Anoih before returning to Maitland the next morning. The true position of these dealings with Mr Anoih (and Maurice Hawell) after the alleged assault is said to undermine MF's claim that she felt "gross" and "shocked and scared" after the incident. That evidence is also submitted to be inconsistent with the live photo showing that MF was not in a distressed state after the incident.
The applicants submit that MF's credibility and reliability generally is put in some doubt by her inability to remember doing and saying the things that she in fact did in her interactions with Mr Anoih in the period after the incident. The points made by the applicants in this regard are stronger in relation to MF than the equivalent points made in relation to DM. However, we do not consider that, either viewed in isolation or in combination with other considerations, they reach the level of establishing a doubt about the conviction, let alone a doubt of a kind that could not be explained by the advantageous position of the jury.
MF was cross-examined about these matters. In relation to what she told her friends she said that she was "embarrassed and ashamed of what had happened" and this was why she wanted to keep the "whole group thing" to herself. MF explained that she kept interacting with Mr Anoih because she still wanted to get to know him and she still regarded him as "cool and funny". As the Crown submits, while this may appear objectively odd, it is dangerous to import assumptions about how victims of sexual assault should or ordinarily do act. MF's attitude to Mr Anoih is also at least partly explained by the fact that she did not understand him to have been participating in the sexual assault of her and called out for him because she saw him as a source of support. Although the Crown case was that Mr Anoih was a participant, from MF's perspective she did not regard him as blameworthy.
We agree with the Crown's submission that evidence of how MF behaved after the events that were the subject of counts 4-7 has to be understood in light of MF's youth and what the jury may reasonably have perceived as a degree of naivety. Likewise the changes in MF's own approach to describing and characterising what had occurred was plausibly explained by a maturing realisation of the gravity of what had occurred, rather than a false reconstruction. Under cross-examination, MF agreed that the contact from the police caused her to take events more seriously and realise what a dangerous position she had put herself in.
These aspects of the evidence are relevant to the assessment of the credibility and reliability of MF, which assessment needed to be undertaken by reference to the evidence as a whole. In making that assessment the jury enjoyed a considerable advantage in hearing MF give evidence. We are not satisfied that these points, either viewed in isolation or in combination with other considerations, give rise to a doubt of a kind that cannot be explained by the advantageous position of the jury.
We reach the same conclusion about the following matters relied upon by the applicants as being relevant to the assessment of the credibility and reliability of MF:
The agreed CCTV timeline demonstrates that at the time the offending took place, there were only five men in the apartment. The events that were the subject of counts 1-7 all occurred between 11.17pm and 12.19am. At 11.13pm Matthew Anoih and Maurice Hawell returned to the apartment with MF and DM. Marius had run back to the apartment from The Cambridge Hotel, arriving at 11.17pm. Andrew David returned to the apartment at 11.31pm. At 12.19am Matthew Anoih, Marius Hawell, DM and MF left the apartment.
With the exception of George Enwiya, during the relevant window of time all of the other guests who had been in the apartment earlier in the night remained outside the apartment. David Babanour had left the apartment at 9.13pm and apparently remained at The Cambridge Hotel for several hours where he appeared on the CCTV at different times dancing and at the bar. Mr Babanour returned to the apartment at 2.35am. Zaid Haddad and George Haddad had arrived at the apartment at 9.15pm. They left at 10.54pm and walked to the hotel. George and Zaid Haddad did not return to the apartment until 12.21am.
Having arrived at the apartment at 7.03pm George Enwiya did not leave the apartment on the Friday night. He was unwell and generally confined to his bedroom. He was distinctively tall and skinny. There is no suggestion in the evidence that he was seen by either of DM or MF at any point until just before they left the apartment. Marius Hawell does not seek to argue that if there were four people in the room there was a realistic possibility that it was George Enwiya.
As the Crown submits, those circumstances provided a cogent basis for the jury to conclude that if there were four men in the room involved in the acts described by MF and DM then Marius Hawell was one of those four men.
However, it does not follow that the evidence demonstrates beyond reasonable doubt that Marius Hawell was present at all relevant times. Marius Hawell points to evidence that he was observed to be fully clothed in the open living area before the events that were the subject of counts 2-7 occurred in the middle bedroom, and he was also observed fully clothed in the open living area after those events. This was in circumstances were three of the men who were observed by MF and DM when they left the apartment were naked.
As for the position before DM and MF entered the middle bedroom, DM's evidence was that when she left the bathroom with MF and went into the middle bedroom, to get ready to go back to the night club, she did not see anyone in the kitchen area. MF gave evidence in cross-examination that when she and DM came out of the bathroom, and before entering the middle bedroom to retrieve MF's phone she saw Matt and "Matt's mate" in the open living area. Marius Hawell submits that the person MF described as "Matt's mate" was him. That submission should be accepted. MF never knew his name. She identified him as a person shown in CCTV footage from The Cambridge Hotel wearing a black top with writing on it and jeans. On the Crown case, this was Marius Hawell.
MF gave evidence that when she saw him in the open living area Matt's mate (ie Marius Hawell) was fully clothed. MF and DM then went straight into the middle bedroom. That was when MF felt a "swarm of hands" on her. The door to the bedroom was then closed and the bedroom was very dark. MF did not have any sense or memory of anyone else following her into the room.
As for the position when DM and MF next returned to the open living area after the events the subject of counts 2-7, DM could not remember seeing anyone other than "Joseph" (ie Maurice Hawell). MF's evidence was that when she and DM left the bedroom after the sexual assaults Matt was back in the kitchen area and "Matt's mate" was in the kitchen area fully clothed.
As Marius Hawell submits, the evidence given by MF and DM about what occurred in the bedroom was not consistent with any of the perpetrators wearing clothes. MF said she felt a swarm of hands and both describe being handled in various ways on the bed. There is no reference in the evidence of MF or DM to any of the perpetrators being clothed, or removing their clothes. As Marius Hawell submits, even if it was dark the complainants on their evidence were in heavy contact with the perpetrators and if any of them had been wearing clothes they would have been expected to say so in their description of events.
We do not consider that the evidence about Marius Hawell being seen in his clothes after the episode in the bedroom is significant. There appears to have been some period of time between the end of the sexual activity in the bedroom and the time when MF and DM came into the kitchen and observed Marius Hawell in his clothes. MF and DM were left alone in the room after the men left. DM estimated that they stayed in the bedroom for about five minutes. DM said that Matt brought some bottles of water for her and MF. The live photo was also taken before MF and DM returned to the open living area. Given this period of time between the sexual activity in the bedroom and the time when MF and DM walked back into the open living area, it was open on the evidence for the jury to reason that Marius Hawell put clothes on after the sexual activity took place and before he was seen in the kitchen area wearing his clothes.
The observation of observing Marius Hawell in his clothes before MF and DM went into the middle bedroom together is more significant. We agree with the submission of Marius Hawell that if the jury accepted the evidence of MF, as it must have done, it could not have been satisfied beyond reasonable doubt that Marius was one of the men who grabbed MF and DM and pushed them onto the bed. On MF's account, when this occurred she had just observed Marius Hawell fully clothed in the open living area. She did not have any recollection of him or anyone else following her into the room, and even if that had occurred it would be hard to reconcile MF's evidence about what followed with Marius Hawell being fully clothed.
The evidence would at least leave open a conclusion that Marius came to enter the room at a later point and removed his clothes. That would be consistent with the evidence of four men being in the room, albeit neither DM nor MF described the door opening and another man entering the room at a later point. But even if this conclusion was open, there was no evidence to indicate when that occurred. This has important implications for the case against Marius on knowledge of the lack of consent, and his spontaneous participation in a joint criminal enterprise to have sex with MF and DM without their consent. The Crown case in these respects depended on the proposition that each of the accused was privy to the circumstances in which MF and DM came to be on the bed, including being grabbed and pushed onto the bed. In the case of Marius Hawell, it could not be established on the evidence that he was present at that point. Nor could it be established on the evidence that he was present when MF asked for Matt and multiple voices said "I'm Matt".
For the Friday night charges, as compared with the Saturday night charges, the Crown did not run a case of joint criminal enterprise that was predicated on one of the participants arriving late and joining into activity that was ongoing. We regard the initial circumstances described by DM and MF when they entered the bedroom to be critical to the Crown case in establishing beyond reasonable doubt that the men who were present and who proceeded to participate in sexual activity with MF and DM knew that they were acting without consent and formed an agreement to proceed to have sex with MF and DM. On the assumption that Marius Hawell was a late participant in that activity, it is entirely speculative to ask when he joined and what particular phase of the activity he was present for.
The prosecution notes that there was other evidence supporting the conclusion that Marius Hawell was present in the middle bedroom. A sperm fraction connected with Marius was found on a black t-shirt that had been in the middle bedroom where the events the subject of counts 2-7 occurred. That would be at least consistent with the proposition that Marius Hawell was present in the bedroom at some point during the sexual activity, but it does not resolve the problem that the evidence did not establish beyond reasonable doubt that he was there throughout.
It follows that it was not open to the jury to proceed on the basis that the Crown had established that Marius was present in the bedroom from the time that, on the evidence of DM and MF, they were grappled and thrown to the bed and sexual activity commenced. In the circumstances, the convictions of Marius Hawell on counts 2-6 must be quashed and an acquittal entered.
Although this determination as to the inadequacy of evidence regarding Marius' participation in the joint criminal enterprise could have consequential effects on the whole joint criminal enterprise for the Friday night, for the reasons outlined above at [198], this was not a point raised by the other applicants, nor raised by the Court with the parties. Any wider consequences from our determination in this regard is a matter for the discretionary consideration of the Director of Public Prosecutions, or argument at a new trial.
That identification of the relevant person that ZG had left the apartment with as being male 6 is particularly significant in circumstances where ZG described spending a relatively extended time in the company of that person after she left the apartment. There was an aborted attempt to visit The Cambridge Hotel but the line was too long and the group decided to walk to Finnegan's Hotel. The group stopped at a park and around that time separated. ZG walked off with male 7. ZG and male 7 later reunited with the rest of the group at Newy Kebabs. As Marius Hawell submits, there was plenty of time and opportunity for ZG to understand who she spent time with after she left the apartment. In those circumstances, it is significant that in her statement to police only eight weeks after these events ZG effectively said that the person she saw go into the bedroom where MS was located was a person who shortly thereafter left the apartment with ZG and spent some time with her.
It was objectively established through the time stamped CCTV footage that ZG did not leave the apartment with Marius Hawell. In fact she left with the man she had identified as male 3, being Andrew David. That gave rise to a realistic possibility that the person who ZG had seen entering the room was the same person who in fact left the apartment with ZG (ie Andrew David), and therefore not Marius Hawell.
There were other indications of unreliability in the identification evidence of ZG. ZG gave evidence that while she was at the kitchen bench and kissing Zaid Haddad, a man slid underneath her and performed non-consensual oral sex on her. She says that she immediately stopped him. Despite this occurring in the kitchen area which was well lit, ZG was unable to identify that man. She said in her police statement (provided around eight weeks after the incident) that it was either male 2 or male 3. At trial ZG gave evidence that she did not know "exactly" who the man was but she believed it was male 3. She did not explain why she had apparently acquired a stronger sense of the identity of the person than she had two years previously when providing her statement. ZG also told police in her statement that at the same time as the man tried to perform oral sex on her another man tried to kiss her. ZG said that it was either male 2 or male 3.
There was some additional evidence relied upon by the prosecution to place Marius Hawell in the room. However it was accepted at trial that ZG's identification was essential, which is why the Shepherd direction was provided.
In the circumstances, it was not open to the jury to be satisfied beyond reasonable doubt that Marius Hawell entered the room occupied by Maurice Hawell, Andrew David and MS. We do not consider that the doubt we have identified in relation to the critical identification evidence can be explained by the advantages enjoyed by the jury, particularly given that the jury was not given the warning that it ought to have been given about identification evidence. Nor do we conclude that it would be open to a jury, properly instructed in that regard, to find beyond reasonable doubt that Marius Hawell entered the bedroom as suggested by the evidence of ZG. Given that ZG's identification of Marius Hawell was essential to the case against him on counts 10 and 11, his convictions on those counts should be quashed and he should be acquitted of those counts.