Pandamooz v R

HEADNOTE [This headnote is not to be read as part of the judgment] Aref Pandamooz (the applicant) sought leave to appeal against his conviction for two counts of sexual intercourse without consent in circumstances of aggravation, following a trial by jury over which Culver DCJ presided. The complainant went to the Stonewall Hotel after a night of eating and drinking with friends at approximately 1am on a Saturday night. On the dance floor, she felt quite drunk and met the applicant. They started kissing and he led her away from the dance floor by the arm. She then realised they were in the men's bathroom. The applicant pulled her into one of the cubicles and locked the door. She was confused, in shock and overwhelmed. He pulled her pants down and had sex with her before she attempted to stop it and tried to open the door. The applicant then shut and locked the door and had sex with her again. She then pulled up her pants, opened the door and ran back to her friends. She did not tell her friends that night but mentioned that something had happened the next morning and later called the 1800RESPECT line, a counselling service for sexual assault, on two occasions, was examined in hospital and made a statement to police. The only issue at trial was whether there had been consent. The complainant gave evidence that she did not consent and that she said things before and during the assaults to communicate her lack of consent to the applicant. It was not the Crown case that she was too intoxicated to have been able to consent. The applicant was not cross-examined about the complainant's intoxication. At the time of the alleged offences, s 61HE(8)(a) of the Crimes Act 1900 (NSW) provided that "The grounds on which it may be established that a person does not consent to a sexual activity include if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug". Neither the Crown nor the trial judge raised s 61HE(8)(a). When a note from the jury asked whether someone can legally give consent when significant intoxication is present, the trial judge informed the parties that she proposed to repeat the definition of consent, remind the jury of the complainant's evidence that she did not consent and inform the jury that they were entitled to consider her intoxication when considering the accused's position. Both parties agreed with this approach. Audio recordings of the two 1800RESPECT calls were played to the jury at trial, which resulted in the trial judge making directions to the jury, which were agreed to by both parties, to deal with statements which should have been edited out where the complainant referred to difficulty with intimacy and a prior incident of sexual assault. The applicant sought leave to appeal against his conviction on five grounds: that the trial judge erred in her direction to the jury concerning intoxication as it related to consent (ground one) and as a result the trial miscarried (ground two), that the trial miscarried because the trial judge in effect directed the jury to decide whether the complainant consented in favour of the prosecution (ground three), and that the trial miscarried as a result of irregularities in the evidence and submissions prejudicial to the applicant's interest (ground five), including admission of parts of a phone call the complainant made to a sexual assault counselling line into evidence (ground four). The Court held (Adamson JA, Harrison and Weinstein JJ agreeing) dismissing the appeal: Grounds 1 and 2 (1) There was no error or irregularity in the direction given by the trial judge regarding whether the complainant consented to sexual intercourse with the applicant (element 2) because it was not capable of affecting the verdicts which the jury actually returned: [84]. Rather, the trial judge forestalled the jury convicting on the basis that the complainant consented because she was drunk and reminded the jury that her evidence was that she did not consent (and not that she consented because she was drunk) and, as it was in the middle of summing up and in relation to the jury question, her Honour was entitled to direct the jury as to how they could use the evidence of the complainant's intoxication when assessing the applicant's state of mind for the purpose of element 3 of the offence. The jury did not need to know of the effect of s 61HE(8)(a) because it did not arise: [70], [77]-[78], [81]-[83]. Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466, considered. Ground 3 (2) There was no error or irregularity in respect of the trial judge's reference to the complainant's evidence in her direction to the jury. The trial judge was referring to the complainant's evidence that she did not consent to remind the jury that the complainant did not say that she only consented because she was drunk. There was nothing in the words used by the trial judge to indicate to the jury that it was bound to accept the complainant's evidence in order to decide a central factual question in favour of the prosecution: [87]. Ground 4 (3) The risk of prejudice arising from the jury potentially reading ahead on the transcript, hearing or making inferences as a result of statements made by the complainant to the helpline was relatively low or almost non-existent and could not have affected the jury's verdict, particularly having regard to the trial judge's timely remedial directions (after consultation with and agreement by the parties on which course to adopt): [114]. Ground 5 (4) Even when considered cumulatively, none of the matters comprising this ground, all of which were the subject of timely directions given by the trial judge, had any effect on the fairness of the applicant's trial or could reasonably be supposed to have had any effect on the verdicts returned by the jury or to have caused the applicant to lose a real chance of acquittal: [150]. Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32], applied.