BASTEN JA: I agree with Hidden AJ that the Court should make the following orders:
1. Refuse leave to appeal with respect to grounds 1 and 2.
2. Grant the applicant leave to appeal, limited to ground 3.
3. Dismiss the appeal.
I agree with the reasons given by Hidden AJ; the following observations relate to the so-called "Murray direction" the subject of grounds 1 and 2.
First, to a criminal lawyer there is a comfortable familiarity about the notion of a "Murray direction", referring to a case decided in 1987. However, for the reasons I sought to explain in Ewen v R, [1] the label is apt to mislead because it treats as immaterial statutory changes which have occurred since 1987. R v Murray [2] concerned an appeal against conviction on a charge of sexual intercourse without consent (and a charge of abduction). In formulating the oft repeated statement for which the case name has become a label, Lee J was concerned to identify the effect of s 405C(1) of the Crimes Act 1900 (NSW), as then in force. Section 405C provided that the judge was "not required", with respect to a prescribed sexual offence, to give "a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed". Lee J noted that the provision did not prevent the judge (i) drawing attention to the absence of corroboration; (ii) making observations about the credibility of the complainant; and (iii) did allow the judge to "stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case". [3] Lee J continued:
"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in".
Lee J stated that "a direction of that kind does not of itself imply that the witness' evidence is unreliable". [4]
The terms of s 405C(2) are now reflected in s 164 of the Evidence Act 1995 (NSW). There is further detail as to warnings about the unreliability of particular evidence in s 165. However, s 294AA of the Criminal Procedure Act 1986 (NSW) now provides:
294AA Warning to be given by Judge in relation to complainants' evidence
(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
Despite the observation by Lee J that a close scrutiny direction does not imply that the complainant's evidence is unreliable, there is a real risk that a jury might so construe it. Indeed, such an understanding is likely to arise in circumstances where the defence (as will often be the case) has addressed in strong terms as to the unreliability of the complainant. Further, as Simpson J noted in Ewen:
"[141] … The critical aspect of s 294AA is the substance of the direction that is prohibited. It cannot be avoided by switching from one linguistic formula ('dangerous to convict') to another ('scrutinise the evidence with great care')."
Accordingly, it is wrong to continue to apply the language of Lee J in Murray as if s 294AA had not been enacted.
Secondly, the language of s 294AA, in the form of a prohibition, itself identifies the purpose of the prohibition. It is to prohibit the giving of "warnings". Despite the longevity of the principles identified in s 405C of the Crimes Act and ss 164 and 165 of the Evidence Act, the legislature accepted that unnecessary and inappropriate warnings were continuing to be given by trial judges, and required by appeal courts. The legislative intention revealed by the terms of the section was to prohibit that practice.
Thirdly, the term "warning" was itself significant. The provision of a warning is appropriate where there is some concealed risk of which the judge is more likely to be aware than is the jury. [5] It is, of course, entirely appropriate to remind a jury that the prosecution case depends largely or entirely upon the evidence of a single witness, if that be the case. However, even that direction may be apt to mislead if given in such general terms. In almost every case of sexual intercourse without consent there is likely to be other evidence, such as DNA evidence, evidence of medical examinations, and evidence of complaint. A direction in general terms that the case turns on the evidence of the complainant alone may be understood by a jury as suggesting that all other evidence can be disregarded. If what is intended is that absence of consent turns on the complainant's evidence alone, that should form part of any such direction.
Fourthly, a direction which goes further than noting, accurately, the scope and extent of relevant evidence risks an implication which contravenes s 294AA, and may be no more than an extended elaboration of the standard direction with respect to the burden of proof which lies on the prosecution. It is well established that the judge should not extrapolate upon the meaning of "satisfaction beyond reasonable doubt".
Once it is understood what is permitted and what, in terms the trial judge said, complaints that the language used in Murray was not adopted are without substance. The directions given have been summarised and extracted by Hidden AJ and need not be repeated. To require anything further would be unnecessary would risk infringing the prohibitions noted above.
FAGAN J: I have had the advantage of reading in advance the judgment of Hidden AJ. I agree with the orders he has proposed and with his Honour's reasons.
HIDDEN AJ: At a trial in the District Court the applicant, Joao Neto, was found guilty of four counts of sexual intercourse without consent (counts 1, 2, 4 and 5) and one count of common assault (count 3). The offences were alleged to have been committed against a young woman at a house at Church Point in the course of one episode in the early hours of 12 February 2017. The applicant was later sentenced to a term of imprisonment. He seeks leave to appeal against conviction only.
[2]
Crown case
The complainant and the applicant first made contact at the end of 2016 in Instagram messages, some of which were in evidence. A few weeks later they met at a gathering at Dee Why. He demonstrated a sexual attraction to her on that occasion, as he did in a number of Instagram messages, but it was the Crown case that she did not reciprocate his interest.
At the house at Dee Why she also met a friend of the applicant's, Joao Carlos Firias, known as "Bidu". The two of them developed an intimate relationship.
The house at Church Point where the offences were alleged to have been committed was the complainant's mother's home. The complainant was staying at that home over the weekend of 11 and 12 February 2017 while her mother was away. Bidu came to the home at her invitation during the evening of 11 February. They consumed some alcohol, swam in a pool at the house, and had consensual sex. At her request, he did not ejaculate inside her because she was not taking any birth control measures.
The applicant had been with Bidu at a hotel in the general area earlier in the evening. Later in the evening, through Bidu and in the face of some reluctance on the part of the complainant, he arranged to stay overnight at the Church Point home. He arrived, and the three of them consumed alcohol and chatted for a period of time. Eventually, the complainant and Bidu retired to a bedroom and the applicant was invited to sleep on a couch in the living room. In the bedroom the complainant and Bidu again had sexual intercourse and again, at her request, he did not ejaculate inside her. Both of them were undressed, and they feel asleep.
It was the complainant's evidence that she awoke as she felt fingers in her vagina. She was lying with her back to Bidu and initially thought it was him, but then saw the applicant standing over his side of the bed. He had no shirt on. She was shocked and said, "What the fuck are you doing in here?" He said that he was scared because he had seen a man in the house. She said that this would have been a house mate who lived there with his girlfriend.
She said that the applicant then got into the bed next to her, so that she was between him and Bidu. Twice he moved his hand towards her vagina but she pushed it away, telling him not to touch her. He tried to kiss her, but she told him she did not want to kiss him. She tried to wake Bidu, poking him with her elbow. He appeared to wake up, kissed her, "sort of laughed" and went back to sleep. She described him as having woken up "groggily".
The applicant kept trying to kiss her, and she kept telling him that she wasn't interested and he should get out of her bed. She thought that she would have to deal with the situation herself because it did not seem that she would get any help from Bidu.
The applicant told her that he was sorry and that he respected her, and asked her to go with him and talk in another room. She told him she did not want to do that, but he pulled on her arm and got her out of the bed. She decided that she would go into the other room with him and be "more firm", leave him there and return to her bed. Still naked, she accompanied him to an adjoining bedroom.
There he pushed her onto the bed, and she grabbed pillows to cover herself as best she could. He sat on the bed next to her and asked her why she did not want to have sex with him. She said, "I don't need a reason, I just don't want to". She tried to stand up to return to the other room, but he closed the bedroom door with his hip, got on top of her, tried to kiss her again and pinned her arms down. She was crying and struggling and telling him to get off her.
She moved her hands down to her vagina because he was trying to penetrate her with his fingers. He told her to move her "fucking hand", and was very angry that she was struggling. She tried to call out to Bidu, but he put his hands over her nose and mouth so that she could not breathe. He did this for about 10-15 seconds, and said that he would do so for longer if she tried to call out again. She was "terrified".
She continued to struggle, trying to get him off her, but he was able to penetrate her vagina with his fingers (count 1). She kept trying to fight him off her, and to reason with him and persuade him to stop. Eventually, however, he managed to force his penis into her vagina (count 2).
After some minutes of penetration he moved his body up towards her mouth and asked her to suck his penis. She was crying loudly and he told her to "shut the fuck up" and slapped her across the face "pretty hard", causing her pain (count 3 - common assault). He forced his penis into her mouth, and she sucked it "mostly out of fear and not wanting to anger him any more" (count 4).
Her evidence was that he slapped her face about four times "throughout the whole thing", once or twice before the act of oral penetration. Immediately after that act he placed his penis back into her vagina (a continuation of count 2).
By this stage she was unable to fight any longer. He suggested that she get on top of him, and when he got off her she tried to get away but he grabbed her by the arm, pulled her back onto the bed and got on top of her. Again he forced his penis into her vagina (count 5). He asked her to say things such as she "loved his dick", and she did so out of fear. He asked her if she would like him to ejaculate on her face, but she said that she would not. She told him not to ejaculate inside her but he did.
She said that "eventually it finished". He said to her, "That started bad, but it ended good" and suggested that they have a shower. He left the room but she went to the adjoining bedroom and woke Bidu.
Her evidence was that she told Bidu that the applicant had raped her, and she was distraught and crying. Bidu gave evidence confirming this. He said that she was calling him and shaking him, trying to wake him up. He observed her to be crying and described her as "desperate", and she told him that the applicant had raped her. According to the complainant, Bidu did not appear "too outraged or anything", and said that he would go and talk to the applicant. She said that she wanted him to do that.
The complainant saw the two men talking in another part of the house, and she confronted the applicant. She said that he had raped her, but he responded that she was lying. She demanded that he leave, but he did not do so until some time later.
To Bidu he also denied having raped her. He affirmed that he had gone to the bedroom where Bidu and the complainant were sleeping because he had seen another man in the house and wanted to ask the complainant who it was. He said that he and the complainant started talking, and then went into the next room and "had sex". He said that she "was having this attitude because she was crazy".
Not long after she had asked the applicant to leave, the complainant jumped into the pool, fully clothed. She went back inside, put fresh clothes on, and contacted her sister. The sister gave evidence. In a phone call between 7.30 and 8am, the complainant told her sister that a friend of Bidu had raped her during the night. She was crying. The applicant had not left at the time she made this call. Her sister offered to call the police but she said "No, I don't want to make a scene. I just want them to leave, they're leaving soon". They met early that evening, and her sister described her as appearing "just broken…just lost…she was just different".
At some stage the complainant sent a message to Bidu, either on Instagram or by text, saying that she would not go to the police if the applicant apologised to her. On that day and the following day she exchanged a number of messages with the applicant in which she complained bitterly of his behaviour, describing him as a "rapist". He sent a message to the effect that they had "had sex" and she was "a bit scared" about Bidu knowing this because she wanted to stay with him, and this was why she claimed rape. This she vigorously denied. In messages between her and Bidu on 12 February she maintained her complaint and her desire for him to confront the applicant about it. The effect of some of her messages was an expression of disappointment in what she saw as Bidu's lack of whole hearted support for her.
The complainant reported the matter to police at Manly in the afternoon of the following day, 13 February 2017. That evening she was taken to Royal North Shore Hospital where she was examined by a registered nurse. The officer in charge of the investigation, Detective Sergeant Dixon, obtained a brief version from her before she was taken to the hospital, and a formal statement was taken some 10 days later.
The registered nurse who examined the complainant, Katherine Evans, observed signs on vaginal examination consistent with sexual intercourse having taken place (which was not in dispute). She saw no injuries to the complainant's face. The complainant provided an account of what had occurred to Ms Evans. Reference will be made to this, and to other aspects of the complainant's evidence, when dealing with the grounds of appeal.
The applicant voluntarily attended Manly Police Station on 30 March 2017. He participated in a recorded interview during which, when asked whether there was anything he would like to say in relation to the matter, he responded, "…this case a big mess. I didn't do anything. I didn't force anything on her".
[3]
Defence case
The applicant did not give evidence in the trial. He relied upon his denials of rape to the complainant, to Bidu and to the police. It was his case that he had had a consensual sexual encounter with the complainant. The issues in the case were:
1. whether the complainant was consenting;
2. if not, whether the applicant knew that she was not consenting; and
3. whether he assaulted her as alleged in count 3.
[4]
The application
Leave to appeal is sought upon the following grounds:
1. The failure of the trial judge to give a Murray direction generally, amounted to an error of law and/or gave rise to a miscarriage of justice.
2. In the alternative, the failure of the trial judge to give a Murray direction with respect to count 3 amounted to an error of law and/or gave rise to a miscarriage of justice.
3. The verdict of the jury was unreasonable and could not be supported by the evidence.
Leave is required because grounds 1 and 2 raise an issue of mixed law and fact, and ground 3 an issue of fact only: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
[5]
Murray direction
Grounds 1 and 2 can be dealt with together.
The familiar Murray direction arises from R v Murray (1987) 11 NSWLR 12, a decision in a sexual assault case where the court considered s 405C(2) of the Crimes Act 1900 (NSW), which had abolished the requirement that a judge warn a jury in such a case that it would be unsafe to convict on the uncorroborated evidence of the complainant. Lee J (with whom Maxwell and Yeldham JJ agreed) observed (at 19) that this did not mean that the judge could not stress upon the jury the necessity to be satisfied beyond reasonable doubt "of the truthfulness of the witness who stands alone as proof of the Crown case". His Honour added:
"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in…."
Section 405C of the Crimes Act has since been repealed, and the position is now governed by s 294AA of the Criminal Procedure Act 1986 (NSW), contained within Division 1 of Part 5 of the Act dealing with evidence in sexual offence proceedings. That section provides:
294AA Warning to be given by Judge in relation to complainants' evidence
(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
The status of the Murray direction in the light of s 294AA was considered by this Court in Ewen v R [2015] NSWCCA 117, (2015) 250 A Crim R 544, an appeal from a conviction in a judge alone trial. The matter was addressed by Simpson J (as she then was), with whom Basten JA and Davies J agreed, at [101]-[146] (565-574). Basten JA added some comments of his own at [24]-[35] (553-5).
Simpson J noted at [104] that the expression "Murray direction" is most commonly used "to refer to a direction that in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care". Her Honour referred to a series of decisions of the High Court about such a direction, in the light of s 405C of the Crimes Act and interstate equivalents, at [107]-[131]. These were Longman v The Queen (1989) 168 CLR 79, [1989] HCA 60; Fleming v The Queen (1998) 197 CLR 250, [1998] HCA 68; Robinson v The Queen (1999) 197 CLR 162, [1999] HCA 42; and Tully v The Queen (2006) 230 CLR 234, [2006] HCA 56.
Her Honour observed at [110] that the effect of the decision in Murray, confirmed in Longman at 87, was to narrow the construction of s 405C so that it applied "to a direction in general terms that there existed a danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class". It remained open to a trial judge to direct the jury "in the circumstances of a particular case that where there was only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before the accused person could be convicted".
Her Honour added, however, that the passage from the judgment of Lee J in Murray cited should not be interpreted as "mandating such a direction". At [113] she referred to the "central proposition" emerging from Longman (at 86) that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible miscarriage of justice arising from the circumstances of the case…."
While s 405C of the Crimes Act removed the requirement to warn a jury about the danger of convicting on the uncorroborated evidence of a complainant, the effect of s 294AA of the Criminal Procedure Act is to forbid such a direction, as her Honour noted at [136]. Nevertheless, her Honour observed at [143]:
"None of this has the effect that an appropriate direction, as envisaged in Longman, cannot be given in prosecutions for sexual offences. The emphasis in Longman, and in Robinson and Tully, was that directions appropriate to the circumstances of the individual case are to be given, and were available to be given under s 405C and its equivalent in other jurisdictions. If the evidence in any case is such as to call for a warning, or a specific direction, as to weaknesses or deficiencies in the evidence, particularly if they are weaknesses or deficiencies that are apparent to the judge but might not be so apparent to the jury, then the judge is entitled, and may be obliged, to draw that to the jury's attention."
In the present case counsel at the trial did not seek a Murray direction, but the matter was raised by the trial judge in discussion before summing up. His Honour referred to Ewen and expressed the view that, in the light of that decision, "one can't give a Murray direction anymore". Presumably, by this his Honour meant a Murray direction based on the lack of corroboration. However, his Honour added that he would point out to the jury "that they do certainly need to consider any weaknesses that they may see in the evidence from the complainant, and anything else that may be relevant to them" [AB 394].
In summing up, of course, his Honour gave the jury conventional directions about assessment of the honesty and reliability of witnesses and the burden and standard of proof borne by the Crown. He also directed the jury about the need to consider each count separately and, in doing so, gave a Markuleski direction (R v Markuleski (2001) 52 NSWLR 83) in the following terms:
"Although each count needs to be considered separately, if you have a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more of the counts, you can take that into account in assessing the truthfulness or reliability of the complainant's evidence generally.
In other words, if you have a reasonable doubt in those circumstances, in respect of any one count, bearing in mind there is one witness, a crucial witness in the Crown's case and that is the complainant herself, and issues of credibility have arisen in this trial, and you have heard the address from the bar table about that. But if you have a reasonable doubt in respect of any one of the counts, then you can take that into account in considering the other counts. In other words, when considering the overall credibility of the complainant, then you can take that reasonable doubt in relation to any of the counts that you are considering, in deciding whether or not there was a reasonable doubt about the complainant's evidence in respect of those other counts." (my emphasis) [407-8]
In summarising the submissions of defence counsel, his Honour referred to a submission that "The Crown's case really rests on what the complainant has told you…you should consider her evidence very closely…can you rely on the evidence of the complainant, in order to be satisfied beyond reasonable doubt?" [419] Later in the summing up he said:
"When it comes to the assessment of the complainant, as you are the judges of the facts, and I consider you have listened carefully to the evidence, you are entitled to, and should consider if there are any weaknesses or deficiencies in the evidence of the complainant, particularly if they are insofar as you are concerned, relative (sic) to any issues of the reliability or honesty of the evidence of the complainant. So, yes, you need to have a good look at that evidence.
So what has loomed large in this trial is a question of honesty and accuracy of the evidence relied upon by the Crown, specifically the complainant herself. The Crown, in his submissions to you, has specifically referred to the evidence upon which the Crown relies, and asked you to draw certain conclusions from that. And effectively [counsel for the applicant] has done the same thing, and has posed a number of questions as well." [423-4]
No further direction in this regard was sought by counsel for the applicant, either before or after the summing up. In relation to both grounds 1 and 2, this imposes a further requirement to obtain leave under r 4 of the Criminal Appeal Rules.
In this Court the applicant was represented by Mr Chrisopher Parkin of counsel (who had not appeared at the trial). In written submissions, as refined in oral argument, he submitted that a Murray direction should have been given and was not. He acknowledged that no particular form of words is required, but argued that his Honour's direction did not direct the jury "in the terms necessary to address the perceptible risk of a miscarriage of justice that a Murray direction is deployed to rectify".
Mr Parkin contrasted his Honour's directions with the suggested Murray direction in the Criminal Trials Bench Book at [3-610], which emphasises the need for caution when the Crown seeks to establish the guilt of an accused in a case "based largely or exclusively on a single witness", the need to be satisfied beyond reasonable doubt that that witness is both "honest and accurate in the account he or she has given" before the accused could be found guilty, and the need to examine the evidence of that witness "very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial". He submitted that this was not conveyed by his Honour's directions.
Mr Parkin referred to a number of aspects of the evidence which, he argued, demonstrated the need for a Murray direction to address the perceptible risk of a miscarriage of justice. These were said to be the following:
1. The evidence of an ongoing flirtatious relationship between the complainant and the applicant over a period of time. This is a reference to the Instagram messages between them prior to the weekend in question, which were in evidence. Some of the complainant's messages could be seen as flirtatious, and in evidence the complainant acknowledged as much. However, she described them as "playful" on her part and said that, insofar as they might have suggested the possibility of sexual interaction between them, that was not her intention and they were not serious on her part.
2. The implausibility of the complainant being woken up in the way she described, with the applicant inserting a finger into her vagina from the other side of the bed, requiring him to reach over Bidu, together with her acknowledgement that she could not be sure that it was the applicant. When this matter was pursued in cross-examination of the complainant, she said that the bed was not "hugely long" and the applicant could have leaned across Bidu. However, it was put to her that she did not know who it was had touched her (meaning, presumably, whether it was the applicant or Bidu). To this she replied, "I guess in that instance there, I don't know. But what happened after, yes".
3. The absence of corroboration from Bidu as to what occurred in the complainant's bedroom, despite his presence at the relevant time. The effect of Bidu's evidence was that he was unaware of anything happening at any relevant time. After he and the complainant had had sexual intercourse he went to sleep, and the next thing he remembered was the complainant waking him at the time she complained that the applicant had raped her.
4. The minimal efforts made by the complainant to procure Bidu's help while, as she claimed, the applicant was in the bed with her and Bidu and the applicant was apparently trying to touch her. As noted above, the complainant's evidence is that she poked Bidu with her elbow to wake him, that he appeared to wake, kissed her, laughed, and went back to sleep. She agreed in cross-examination that she had not said to Bidu that she needed his help. Indeed, she did not recall saying anything to him at all at that point.
5. The complainant's own evidence that she went into the bedroom where the intercourse took place while she was naked, without trying to get her clothes, in circumstances where moments earlier, according to her, the applicant had been trying to touch her and she knew he had a genuine sexual interest in her. In cross-examination, she said that the clothes she had been wearing were still in the bedroom, and she agreed that she did not try to get them at that stage. She also said, however, that it was dark and the applicant was pulling on her arm, and she repeated that she took the opportunity in the adjoining room to cover herself with pillows.
6. The complainant's contact, in the days subsequent to the incident, with a number of individuals who were mutual friends of the applicant's, telling them her version of events. She agreed in cross-examination that she had done so, saying that the friends concerned, while friends of the applicant, were also close to her. She added that she did so because "the only way they would hear what happened was from me" because the applicant "would lie, or not tell them anything". She also said that she told these people "for advice, for help", and that they were supportive of her.
7. The complainant's offer not to go to police if the applicant apologised.
The significance of the matters in subparagraphs (f) and (g), Mr Parkin submitted, was that they had founded an argument by defence counsel that, in truth, what the complainant was seeking to do was vindicate her own reputation.
Specifically as to the assault charge (ground 2), Mr Parkin relied upon the following matters:
1. As noted above, the nurse who examined the complainant saw no injury to her face despite her evidence that she had been slapped four times "pretty hard" or, as she put it in cross-examination, "relatively hard".
2. The nurse recorded the complainant's account that the applicant had "covered my face, punched my nose and blocked my mouth, and I couldn't breathe". The complainant gave evidence that he had not punched her nose and denied having told the nurse that he had.
3. In an Instagram message the complainant had told Bidu that the applicant had "choked" her. In cross-examination she said initially that he had put his hands around her throat hard enough to stop her breathing, but a little later said that he did not "actively strangle" her and did not have his hands around her throat. Pressed about the message to Bidu, she said that nothing she was saying was untrue but that "the situation becomes blurred".
4. The nurse did not record any history of choking or strangulation, and did not observe any signs or symptoms of that kind.
5. In re-examination, the complainant said that the applicant's hand came into contact with her neck "a small amount of time as my body was moving backwards towards the bed", but that it by no means blocked her breathing.
Of course, s 294AA did not apply to the count of common assault, that not being a prescribed sexual offence, and Mr Parkin submitted that these matters warranted a Murray direction at least in respect of that count. That said, the common assault count is obviously closely related to the sexual counts, and he argued that all of the matters relied upon for these grounds warranted a Murray direction, emphasising that they bore upon not only whether the complainant was consenting to sexual activity with the applicant but, if she were not, whether he was aware of that.
In the passage in Ewen at [143] quoted above, Simpson J referred to the need for a warning or a direction which might arise, in particular, if there are weaknesses or deficiencies in the evidence "that are apparent to the judge but might not be so apparent to the jury…." This was derived from the High Court authority to which her Honour referred, affirmed more recently by that court in R v GW (2016) 258 CLR 108, [2016] HCA 6 at [50], (130-1).
Of course, guided by that principle, whether a warning or a direction is required is a matter within the discretion of the trial judge in the light of the issues in the case at hand: AL v R [2017] NSWCCA 34, (2017) 266 A Crim R 1 at [85]. In that case, apart from forensic disadvantage attributable to the delay in prosecution, the trial judge had declined to give a warning or direction in the light of other matters raised. The Court concluded that the jury were "readily able to recognise and assess" each of those other matters. The Court added that the jury "saw the complainant give evidence and observed his responses to questions in cross-examination that were directed to the potential unreliability of his evidence", and that the jury "additionally had the advantage of a very comprehensive address from trial counsel in which all of the features which could point to unreliability in the complainant's evidence…were highlighted, with some skill".
As the Crown prosecutor in this Court pointed out, that is a fair comment about the address of defence counsel in the present case.
The inconsistencies and weaknesses in the complainant's evidence asserted by Mr Parkin, either individually or collectively, do not appear to me to be of a kind which the jury would not have been able to assess without judicial guidance. They are very different from the issues which arose in the High Court cases examined by Simpson J in Ewen, which involved allegations of sexual abuse of complainants who were children at the time and, for the most part, significant delay in complaint (apart from other features).
It is apparent from his Honour's directions referred to above that appropriate emphasis was placed upon the fact that the complainant was the crucial Crown witness, that her credibility had been impugned, and that the jury should carefully assess the weaknesses or deficiencies in her evidence asserted in the defence case. This may have fallen short of the emphatic nature of a Murray direction, but in the circumstances of this case those directions were sufficient. It is significant that in the atmosphere of the trial neither defence counsel nor the Crown prosecutor saw any error or injustice in his Honour's approach: Aravena v R (2015) NSWLR 258, [2015] NSWCCA 288 at [121] (274).
Grounds 1 and 2 do not establish a miscarriage of justice, and in respect of them I would refuse leave to appeal.
Since preparing these reasons I have had the benefit of reading the judgment of Basten JA. In my respectful view, his Honour's observations are persuasive. However, as they extend beyond the scope of the argument in the present case I prefer to refrain from expressing a concluded view about them.
[6]
Unreasonable verdict?
The principles governing this ground have been the subject of extensive High Court authority, which is familiar and need not be rehearsed. The test was pithily expressed by Hayne J in a frequently cited passage in Libke v The Queen (2007) 230 CLR 559, [2007] HCA 30, at [113] (596-7):
"…the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt."
The task of an appellate court is to assess the evidence for itself, while bearing in mind the jury's advantage in having seen and heard the witnesses: M v The Queen (1994) 181 CLR 487at 494, and recognising that it "involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials": MFA v The Queen (2002) 213 CLR 606, [2002] HCA 53, per McHugh, Gummow and Kirby JJ at [59] (624).
Particularly in a case such as the present, turning upon the honesty and reliability of the principal Crown witness, I would respectfully adopt the following observation of McCallum J (as she then was) in Hawi v R [2014] NSWCCA 83 at [480]:
"The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function."
In the present case, apart from inconsistencies identified in the complainant's evidence, Mr Parkin relied upon the applicant's prompt assertion that his sexual encounter with the complainant was consensual, and his adherence to that assertion thereafter, the absence of any corroboration of the complainant's account by Bidu, and what was said to be the inconsistency of her account of physical violence with the observations of the nurse, Ms Evans. He referred to a passage in the judgment of the High Court in the recent decision of Pell v The Queen [2020] HCA 12. At [38], their Honours considered the reference in M v The Queen to the jury's advantage in seeing and hearing the witnesses, pointing out that the court there was "remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court".
The court continued at [39]:
"The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, 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." (footnote omitted)
Pell, of course, is the much publicised case of alleged child sexual assault by an archbishop after mass at St Patrick's Cathedral in Melbourne. The High Court found verdicts of guilty to be unreasonable, despite the apparent credibility of a complainant's evidence standing alone, in the light of its inconsistency with independent evidence of Cathedral procedure. As I understand it, Mr Parkin sought to draw some analogy here with the court's conclusion in that case, expressed in [118]-[119]. The present case is not of the kind. It turned very much upon an assessment of the complainant's credibility, to which the other evidence of the case could make little or no contribution.
For the purpose of this ground Mr Parkin relied upon the aspects of the evidence raised in relation to the previous two grounds at [53] and [55] above, together with two additional aspects. For this ground also, of course, he relied upon these matters on both the issue of consent and of the applicant's knowledge of lack of consent. In my view, all these matters have been addressed persuasively in the Crown's submissions.
As to the flirtatious messages between the complainant and the applicant over a period prior to the weekend in question, I have noted that the complainant acknowledges having sent messages of that kind but asserted that it was not her intention to invite sexual activity with the applicant. A fair reading of the messages, including one that appears to make it clear that she is not interested in a sexual encounter, is consistent with that evidence. In any event, any flirtatious relationship which might have existed prior to the occasion in question appears to me to be of little significance on either of the contested issues, which turn very much upon the complainant's account of the conduct giving rise to the charges.
As to the complainant's evidence of being woken by the applicant leaning across the bed and inserting a finger into her vagina, and her acknowledgement in cross-examination that she was unsure whether that was the applicant or Bidu, Mr Parkin submitted that it demonstrated a willingness on her part "to make very serious allegations without being entirely sure of them". However, it is equally consistent with her being careful in her evidence and prepared to make appropriate concessions.
Mr Parkin described her steps to attract Bidu's attention and enlist his aid as "not what would be expected if she was not participating voluntarily". Her evidence, however, was that she was unsuccessful in attempting to awake Bidu initially, and that in the adjoining room the applicant stifled her protests by holding his hands over her nose and mouth and threatening to do so for longer if she continued to call out.
Mr Parkin also referred to the complainant's evidence in cross-examination that when the applicant pulled her by the arm to get her to the adjoining bedroom he did so "quite aggressively". She had not described his action in that way in her evidence in chief. Nor had she done so in her statement to the police, in which she said that the applicant had asked her to go to the adjoining room and that she had followed him in there. To the nurse, Ms Evans, she had said that the applicant "asked me to go to another room to talk and I thought I could talk him down so I went".
The Crown prosecutor in this Court suggested that this could be seen simply as the provision of further detail, noting that inconsistencies are common in the memory of traumatic events. She referred to the judgment of Hoeben CJ at CL (with whom Price and Campbell JJ agreed) in DH v R [2020] NSWCCA 2. At [128], albeit in a very different context from the present case, the Chief Judge observed that it is "generally understood that memory does not work as a videotape". However, here the inconsistency was elicited and it was a matter for the jury to determine its significance in the light of the evidence as a whole.
Allied to this criticism was the evidence that the complainant went to the adjoining room naked. However, her evidence was that in that room, where she hoped to be "more firm" with the applicant about his behaviour, she sought to cover herself with pillows. Again, it was for the jury to assess the significance of this evidence.
The same is true of the apparent inconsistencies in her account of the physical violence, as opposed to the sexual assault, said to have been inflicted by the applicant, set out at [55] above. This appears to centre upon assertions that he punched her nose and choked her, which fall to be assessed against her consistent evidence that he had covered her nose and mouth in such a way as to impede her breathing. The fact that there were no signs of injury to her face, despite her evidence that he had slapped her with some force several times, is hardly surprising, given that the nurse examined her in the evening of the day after the incident. Certainly, there was no medical evidence that any sign of that assault should have been apparent at that time.
On the issue of consent, the Crown prosecutor at the trial relied upon the undisputed fact that the applicant had ejaculated inside the complainant even though earlier in the evening she had asked Bidu not to do so. However, Mr Parkin noted evidence of Bidu that during a previous sexual encounter at his apartment he had ejaculated inside her. This matter does not appear to have been pursued in the evidence of the complainant herself and, whatever the circumstances might have been on that earlier occasion, it was clearly the evidence of the complainant that on the weekend in question she did not want internal ejaculation.
Mr Parkin submitted that the complainant's conduct in jumping into the pool fully clothed was "bizarre and unexplained", and not consistent with the conduct of a person who had just been sexually assaulted. However, there is force in the Crown prosecutor's response that this might have been an impulse to "wash away a traumatic event". In Tonari v R [2013] NSWCCA 232, (2013) 237 A Crim R 490, at [192] (518), Johnson J (with whom Price and R A Hulme J agreed) referred to "the experience of the criminal courts that victims of sexual assaults do not necessarily respond in ways that accord with some mechanical or predetermined view as to how a victim of sexual assault should respond". His Honour affirmed that observation, in a decision with which Rothman and Lonergan JJ agreed, in Day v R [2017] NSWCCA 192 at [91]. Although it was made in different contexts in both those cases, the observation is apt here.
Finally, Mr Parkin relied upon the complainant's conduct in conveying that she would not go to the police if the applicant apologised to her, and contacting friends to tell them that he had raped her, as consistent with the possibility that she had been consenting "but regretted doing so, and was subsequently concerned with controlling the narrative". Here also, the Crown relies upon Johnson J's observation. In her evidence, asked why she did not contact the police on the day of the incident, she said that she did not know "what to feel" and was just "in shock". She added that when she had "calmed" and got her "mind back", it made "perfect sense" to go to the police. Of course, her seeking an apology from the applicant and complaining of rape to their mutual friends are equally consistent with her account being truthful.
In her evidence the complainant gave a detailed account of what she said occurred to her at the hands of the applicant. She complained of it promptly, maintained that complaint in communications with others, and reported the matter to police the following day. Of course, there are inconsistencies and weaknesses in her evidence. However, that is frequently the case when one examines the evidence and pre-trial accounts of a violent and frightening event by someone in her position. The jury had the opportunity to observe her giving evidence and to assess her credibility, determining the weight to be given to those inconsistencies and weaknesses. In my view, it was plainly open to the jury to accept her evidence as truthful and reliable in essential respects and to find the offences established beyond reasonable doubt. On the whole of the evidence, I am not persuaded that the jury must have had a reasonable doubt about all or any of them.
I would grant leave in respect of this ground but reject it.
Ewen at [29] (Davies J agreeing at [238]).
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Decision last updated: 18 June 2020