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 - NSWCCA 2010 case summary — Zoe

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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

Court of Criminal Appeal (NSW)|2010-08-06|Before: Macfarlan JA, James J, McCallum J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-08-06

Before

Macfarlan JA, James J, McCallum J

Source

Original judgment source is linked above.

Judgment (87 paragraphs)

[1]

CITATION: 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 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

JUDGMENT OF: Macfarlan JA at 1; James J at 180; McCallum J at 181

[3]

(1) Grant leave to the appellants Chishimba, Makasa and Mulenga to appeal upon the grounds contained in their Notices of Appeal, other than Grounds 3 and 4 referred to in [22] of the Court's reasons for judgment, leave to appeal not being required in respect of Grounds 3 and 4; (2) Refuse leave under rule 4 Criminal Appeal Rules for those appellants to rely upon Grounds 3 and 4; (3) In respect of Count 1 allow the appeals of each of those appellants and quash each of the convictions; DECISION: (4) Direct that on this Count a judgment and verdict of acquittal be entered in relation to each of those appellants; (5) In relation to Counts 8, 10 and 16, vary the commencement date of the sentence imposed upon the appellant Makasa so that the sentence in relation to the convictions on those Counts is imprisonment for a term of 2 years, consisting of a non-parole period of 1 year commencing on 4 March 2008 and expiring on 3 March 2009, with a balance of term of 1 year expiring on 3 March 2010; (6) Dismiss the Crown appeal against sentence, with reasons to be published subsequently; and (7) The effect of the above orders is that the appellants Chishimba, Makasa and Mulenga are entitled to be released from custody immediately.

[20]

Nature of Case and Conclusions 2 This judgment relates to appeals and applications for leave to appeal by Tyrone Chishimba, Likumbo Makasa and Mumbi Peter Mulenga against their conviction on charges pursuant to s 61J Crimes Act 1900 of aggravated sexual intercourse without consent with a girl ("the complainant") who was then aged 15. The charges related to an event alleged to have occurred on the night of 30 - 31 August 2006. Makasa was also convicted upon certain charges relating to events occurring during the day of 31 August 2006 but does not seek to appeal against those convictions. The various convictions resulted from verdicts of guilty returned by a jury at the conclusion of a three month trial. The jury found the appellants not guilty on other charges relating to offences alleged to have been committed on those days. 3 The appellants contended on appeal that the challenged verdicts of guilty are unreasonable and cannot be supported having regard to the evidence, particularly insofar as the verdicts were based upon acceptance of the Crown's case of a joint criminal enterprise on the part of the appellants and particularly in light of the verdicts of not guilty on the other charges against them. The appellants also contended that certain directions that the trial judge gave to the jury were incorrect. 4 There is also before the Court a Crown appeal in relation to the sentences of imprisonment imposed upon the appellants. The Crown contended that those sentences are manifestly inadequate. 5 For reasons that are set out below I have concluded that the convictions on the charges related to the event alleged to have occurred on the night of 30 - 31 August 2006 (Count 1 in the Indictment) should be quashed upon the basis that it was not open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty of the offences charged (see [88] - [159], see especially [134], [150] below). Although the sufficiency of the trial judge's directions to the jury does not arise in these circumstances, I have expressed the view that there was no error in those directions (see [160] - [172] below). 6 As in my view the appellants' convictions on Count 1 should be quashed, it is unnecessary to consider the Crown appeal as to the adequacy of the sentences in relation to that Count. However because Makasa does not challenge his convictions on Counts 8, 10 and 16, it is necessary to consider the Crown appeal as to the adequacy of his sentence on those Counts. In relation to that aspect of the Crown appeal, my view is that the Crown's contentions should be rejected. However the commencement date of the sentence should be varied to reflect the fact that if the orders that I propose are made there will be no conviction, and accordingly no sentence, in relation to Count 1.

[26]

General description of the events of 30 and 31 August 2006 13 I shall set out later details of the evidence that is of significance to resolution of the issues on appeal. It is however desirable that at this stage I give a general description of the events and allegations relating to 30 and 31 August 2006. This account is largely derived from the electronically recorded Record of Interview that the police conducted with the complainant on 1 September 2006 (particularly Appeal Books pp 834 - 837) and from the trial judge's Remarks on Sentence dated 26 October 2009. All page references given in the remainder of this judgment are, unless otherwise indicated, to pages of the Appeal Books. 14 After school on 30 August 2006 the complainant met with a girlfriend and commenced, and continued, to drink a considerable amount of alcohol. She said that she "passed out in Hungry Jack's at Hurstville" but someone "slapped" her awake. Soon after, she was nearby drinking on the side of the road with a number of girlfriends when she met another friend, Jesse, who introduced her to Chishimba and Makasa. Someone suggested that they all go to the nearby home of Makasa to continue drinking. Makasa's home was part of a house that was divided into three. He shared it with Mr Chinyani. 15 At the house, the complainant started vomiting. She said: "[i]t was about 6 o'clock and I'd drunk so much and I started spewing all over myself. I was spewing all over me, I was spewing on the carpet, on the couch, everywhere". She then went, or was taken, outside the house where she fell asleep on the grass. Sometime later the complainant moved, or was moved, inside the house. At some stage of the evening she was in Mr Chinyani's bedroom and apparently vomited, or left vomit, there. 16 The complainant described herself as "still wasted" when she returned to the house. She said that she wanted to sleep and was told to go into Makasa's bedroom. She was told that because she had vomit on her clothes she could not sleep on the bed unless she changed into clean clothes. She was given a basketball jersey and a sarong into which she changed. There were a number of men in the room when she changed and went to sleep. The complainant said that she later woke up to find one of the men having intercourse with her and to see others in the room. This was the event that was the subject of the charge relating to the evening of 30 August on which the appellants were convicted (Count 1). The complainant alleged that in the following two hours five men, including the three appellants, had various forms of sexual intercourse with her without her consent. Counts 3 to 6 of the charges related to events that allegedly occurred in this period. 17 The complainant said that when she woke on the morning of 31 August 2006 she was alone with Makasa in his bedroom and in the period from when she woke to 4.00pm that day Makasa repeatedly had sexual intercourse with her without her consent. She said that this occurred about 25 - 30 times during the day (p 922). Counts 7 to 16 of the charges related to events that allegedly occurred in this period. The jury found Makasa not guilty of the charges under s 61J Crimes Act (which required proof of the absence of the complainant's consent and Makasa's knowledge of that lack of consent) but guilty of three of the charges under s 66C(3). The latter did not require proof of lack of consent and knowledge of that lack of consent but did in the circumstances require proof of an absence of an honest and reasonable belief that the complainant was over 16 years in age (see CTM v R [2008] HCA 25; (2008) 82 ALJR 978 esp at [35]). The jury found Makasa not guilty on the other charges relating to alleged events of that day. 18 In his opening at the trial, the Crown Prosecutor particularised Count 1 (upon which all the appellants were convicted) as relating to penile-vaginal intercourse alleged to have been occurring as the complainant awoke on the evening of 30 - 31 August 2006 and Count 3 to oral intercourse and Count 5 to anal intercourse which subsequently occurred on that evening (p 736).

[27]

Reconciliation of verdicts 19 In his Remarks on Sentence, the trial judge concluded that the jury's verdicts were not inconsistent. His explanation of how they could be reconciled was not challenged by any of the parties to the appeals. 20 The trial judge commenced by saying that: "As to the events that took place between 7am and 4pm on 31 August it is apparent that the jury were not satisfied that the Crown had proved beyond reasonable doubt that [the complainant] had not consented to the sexual intercourse, or they were not satisfied that the Crown had proved beyond reasonable doubt that Mr Makasa knew she was not consenting. It is also apparent that the jury rejected completely [the complainant's] evidence that [during the day on 31 August 2006] Mr Makasa had sexual intercourse with her at least twenty-five times. They were not prepared to find the accused guilty of even the five offences alleged in the indictment. They found him guilty only of the three acts of intercourse to which, through his counsel, he had admitted" (p 29). 21 His Honour went on to say: "As to the events of the preceding night [that is, the night of 30 - 31 August 2006], it is apparent that the jury were satisfied beyond reasonable doubt that [the complainant] awoke to find someone having penile vaginal intercourse with her and were satisfied beyond reasonable doubt not only that she had not consented to that intercourse, but also that the men present in the room knew she was not consenting. Further, the jury must of necessity have been satisfied beyond reasonable doubt that the three accused were participating in the joint criminal enterprise alleged by the Crown. As the jury has found each accused not guilty of counts 3 and 5, it appears to me that the jury must have come to the conclusion that the Crown had not proved beyond reasonable doubt that the alleged acts of intercourse took place, or that the Crown had not proved beyond reasonable doubt that [the complainant] did not consent to the intercourse, or that the Crown had not proved beyond reasonable doubt that the accused knew that she was not consenting. As the jury has found each accused not guilty of the alternative counts, 4 and 6, it appears to me that the jury must have come to the conclusion that the Crown had not proved beyond reasonable doubt that the alleged acts of intercourse took place, or that the Crown had not proved beyond reasonable doubt that the accused persons did not have an honest and reasonable belief that [the complainant] was above the age of sixteen years. In my view there is no reason to suppose that the jury did not find the three accused not guilty of the fourth and sixth counts on this second basis. The evidence of Mr Chinyani that after he had entered the house and had gone to his room he heard the bed in Li's [Makasa's] room rocking then stopping and that this happened on several occasions, was not disputed. Mr Chinyani also gave evidence that Li knocked on his door with a jacket tied around his waist and asked for condoms. Mr Chinyani said he gave him two. His girlfriend, Genna Walker, gave evidence that Li came to the door wearing a black jacket in front of him wrapped around the back. She said it dropped a bit and she saw his thigh. She said she had no recollection of the conversation that took place between Li [Makasa] and Mr Chinyani. I am left in no doubt that [the complainant's] evidence, together with Mr Chinyani's evidence as to what he saw and heard when he returned to the premises, and the DNA evidence given by Ms Sharon Neville, would have satisfied the jury beyond reasonable doubt that many acts of sexual intercourse took place in Li Makasa's bedroom on the evening in question. Their verdicts of guilty in respect of the three alternative counts, 8, 10 and 16, are consistent with them being satisfied beyond reasonable doubt that by the following morning Mr Makasa did not have an honest and reasonable belief that [the complainant] was above the age of sixteen years. As to the jury's verdicts of not guilty in respect of counts 3 and 5, the alleged acts or oral intercourse and anal intercourse, it is Mr Trevallion's submission that I should make a positive finding that [the complainant] consented to those acts. I am unable to make that finding. In my view the jury's verdicts mean no more than that they were not satisfied beyond reasonable doubt that [the complainant] had not consented, or were not satisfied beyond reasonable doubt that the accused knew she was not consenting. It is not my opinion, on the balance of probabilities, that she did consent. I accept Mr Trevallion's submission that the best explanation for the jury's verdicts of guilty on the first count in the indictment is that they accepted [the complainant's] evidence that she was asleep when that offence commenced and was therefore not able to consent" (pp 30 - 32).

[35]

Joint criminal enterprises distinguished from aiding and abetting 30 In Osland McHugh J distinguished between different types of criminal complicity. 31 First he referred to a "principal in the first degree" as one who committed "the whole or part of the actus reus of the crime [that is, the criminal act]" (at [70]). Secondly he said that "[t]hose who [aided] the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime" (at [71]). 32 His Honour then referred to a further category of derivative liability, that is, principals in the second degree. These were persons "who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death [where the alleged offence involves homicide]" (at [71]). 33 McHugh J then identified a further category that is applicable "where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree" (at [72]). It is with this category that the directions in Tangye (see [29] above) were concerned. In the present case, the Crown alleged that the appellants fell within this category and were thus liable as principals in the first degree. They were not alleged to have been aiders and abettors and thus liable as principals in the second degree. Nevertheless as liability for being an aider and abettor can involve proof of encouragement (see authorities described below from [137] - [146]) and as liability arising out of a joint criminal enterprise requires proof of an arrangement or understanding to commit a crime which may be inferred from encouragement of another in the commission of a crime (see Tangye extract above at [29]), authorities concerned with the former category may be instructive in relation to the latter. 34 I add that McHugh J observed in Osland in relation to the directions formulated in Tangye that "[i]n accordance with the New South Wales practice, the Court referred to 'carrying out a criminal enterprise' rather than acting in concert. The principles, however, are the same" (at [74]).

[36]

The relevance of verdicts of not guilty on other charges 35 As pointed out above (see [19] - [21] above), the trial judge took the view that the verdicts returned by the jury were not inconsistent. His Honour's analysis of them was not challenged on appeal and is in my view correct. The fact that in this case the jury found the appellants guilty on some counts and not on others is accordingly not of itself a reason for concluding that the convictions of the appellants were unsafe and unsatisfactory (see MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 365 - 368; Osland at [120]). Nevertheless the acquittals on various of the counts here are significant factors that must be taken into account in considering whether the convictions are unsafe and unsatisfactory. 36 This is demonstrated by the analysis by Gaudron, McHugh and Gummow JJ in Jones of the views of the jury that were implicit in its acquittal of the appellant on one of the counts charged in that case. Their Honours considered that "[t]he only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of [the complainant's] evidence concerning the incident the subject of the second count", with the consequence that "[t]he jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment" (at 453). 37 Their Honours went on to say that there was "nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count". They ultimately found that the convictions on the first and third counts were unsafe and unsatisfactory. Their Honours said: "Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof" (at 455). 38 These observations and conclusions are relevant to the present case because, on the trial judge's subsequent analysis of the verdicts, the jury's verdicts of not guilty on all charges under s 61J Crimes Act, other than on the first Count (which related to the point of time at which the complainant said she was asleep), indicate that the jury must have considered that the complainant's evidence that she did not consent to the sexual activity the subject of those charges and/or that she communicated that lack of consent to the appellants "lacked sufficient cogency to convict" (Jones at 455 quoted in [37] above) (see [21] above). Bearing in mind what the trial judge said was implicit in them, the verdicts of not guilty disqualified the complainant's evidence of protestations concerning the sexual activity from consideration as part of the evidence of the existence of a joint enterprise to commit a criminal act. That is because it was implicit in the verdicts of acquittal that the jury was not satisfied to the requisite degree that the complainant protested as she contended in her evidence. 39 What I have said on this topic does not conflict with the observation in MFA that "Jones was a very fact-specific case. Indeed all such cases are highly fact-specific" (at [89], citations omitted; see also at [34] - [35] and R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299). The views I have expressed are based upon the trial judge's close consideration (with which I agree) of what was necessarily implicit in the jury's verdicts and the particular factual circumstances of the case.

[39]

The Record of Interview of the complainant of 1 September 2006 44 An electronic record of the police interview of the complainant conducted on 1 September 2006 was admitted into evidence and played to the jury. This record constituted the principal evidence in chief of the complainant at the trial. 45 Having given a description along the lines of that which I have given above (see [14] - [15]) of the events leading up to the complainant falling asleep on the grass outside Makasa's home, the complainant said "I woke up back in the house" and in response to the question "What happened after that?" said: " … oh, yeah, the night, Wednesday night is when all those boys were there and then they were just, like, speaking their little language and, like, I was so tired. I just, I just didn't do anything. I just let them do what they were doing and I thought, All right, then in the morning I can just go … when I'm sober. And then I woke up in the morning, I was, like, woken up to being, like, shaken at 7.00 in the morning. They, all the boys had left. There was just this one that lived there and, like, he, oh, he made me, like, have sex with him from, like, 7 o'clock till, like, 4 o'clock in the afternoon. He took his little 10 minute sleeping breaks and I was, like … Q81 What happened after that? A Then I went home … I went to Hurstville. I talked to the youth worker at, at Hurstville and she called my refuge 'cause I was a missing person for about a day and, or something, and then the refuge told me to tell police and I told the police and now I'm here" (pp 836 - 837). 46 The complainant said that when she went from the loungeroom into Makasa's bedroom "that's when they gave me clean clothes and that's when I know, like, it was a dark room but there were, like, five figures" (p 885). She said that she was "still wasted" and that Makasa and Chishimba were amongst the five in the bedroom. Since there was vomit on her clothes she was told that she had to change before she could go to sleep. She was given a basketball jersey and a sarong, both of which she put on. After putting on the sarong she took her underpants off (pp 888, 989). She described the men as "all random sitting down on the floor and, yeah, there's little people on the floor" (p 891: Question 566; compare [47] below: Question 634). The light was off but there was light coming into the bedroom from the loungeroom (p 887). After the complainant lay down on the bed, Makasa told her that she could stay at his house, presumably for the night. 47 She then gave the following evidence: "Q630 … And what did you say when he was telling you that? A I was, like, Oh, OK, thank you, you're nice. I was just trying to go to sleep and, yeah, I can't remember but then I just remember, like, having sex, that's all. Like, I can't remember who started or what happened. I really can't. Like, I've been racking my brain, like, all, all yesterday afternoon, today, but I can't, I don't know. Q631 Was there anyone, when you first got on, you said you got on the bed, you were going to go to sleep? A There was no one in or on it when I got on it. Q632 OK. A And then [Li] sat down and talked about the girls [one or more of the complainant's girlfriends had allegedly stolen things from her handbag]. Q633 When you say he sat down, where did he sit down? A Like, next, like, there on the bed and I was, like over there trying to sleep. Q634 Was there anyone else in the room at this time? A Yeah, like, there were, like, four guys just standing over there. Q635 OK. A And then I just remember that conversation and then I don't remember until just waking up with, like, people on me. That's all I can remember. Q636 … You said you woke up and people on you. Go back to when you very first woke up. What did you see? A What do you mean, very first - - - Q637 When - - - A - - - woke up? Q638 - - - you said you're, you're on the bed and he was sitting on the bed talking to you about - - - A … Q639 - - - what the girls had done. A And when I very first woke up? Q640 Mmm. A That's when I had people on me … Q641 Q642 …You said when you woke up you had one guy having sex with you. What do you mean by that? A Like, he was having sex with me and it was normal sex then, yeah. Q643 What, what were you doing? A Nothing, just laying there. Q644 Mmm. A I was doing nothing. Q645 When you're saying you were laying there, how were you laying? A Just on my back. Q646 Mmm. And what was this person doing? A Well, having sex with me and then I remember just, like - - - Q647 OK. A - - - another one then another one" (pp 898 - 899) 48 The complainant said that the intercourse occurring when she woke up was penile-vaginal intercourse. When asked to describe the person who was having intercourse with her she responded: "He was black but that's all I know. They all, it's like they were all one person that night. Like, who would know, man?" (p 900). 49 When asked whether she said anything to the man, she gave the following evidence: "Q668 And did you say anything to him? A No, I was just silent. Q669 … A Oh, I said a couple of times, like, I don't want, I was crying 'cause it was hurting … Q670 And what, when, you said you were crying and it was hurting. At that stage, what, what could you see in the room? A Just, like, there's a couple of guys on the floor. There was, like, I think, one guy standing up near the bed. I think there was another one sitting on the bed. Then there was this one, like, was, OK. Q671 And can you describe the person that was on top of you? A I don't, see, they all really look really similar when it's at night and it's a dark room. Like - - Q672 Mmm. A - - - I really couldn't determine what was what, who was who, like - - -" (p 903). 50 Later the complainant gave the following evidence about the same incident: "Q698 When he was on top of you what was he wearing? A I don't know. I can't remember. … I seriously don't know. It just bothers me that I don't know things. Q699 That's OK. A No. Q700 And how, and how did that stop? A I don't know. I think he stopped. Q701 … Just go back to there. You said he stopped. When he stopped what did he do? A Got off me, I think. Q702 Mmm. A He just got off the bed and, like, yeah, because there was one sitting next to me on the bed and then he kind of moved closer to me and then it was, like, just another one randomly gets on the bed. Q703 So the person sitting next to you is still sitting next to you - - - A Yeah. Q704 - - - but moved closer? A Yeah. Q705 And then someone else got on the bed? A Yeah. Q706 And what happened when that person got on the bed? A Yeah, fuckin', one of them started, that one sitting next to me, that's right, he was pushing my head and [it] ended up that I was giving him head and I was, like, like, I was, I was gone but, like, I could feel it happening but it was, like, even if I'd tried to I don't know how I would've controlled, like, stopping any of this. Q707 … When you say you were giving him head, what do you mean? A Giving him head and, like, my mouth on his thing and, yeah. Q708 When you say, his thing, what do you mean? A His penis. Q709 And this was the person that was sitting next to you? A Yes. I think that was Tyrone. I can remember his ugly face. Yeah, I reckon that was Tyrone" (pp 906 - 907). 51 The oral sexual intercourse that the complainant described in this passage was the subject of the third and fourth Counts, they being charges of which the appellants were acquitted. 52 The complainant said that sexual activity with the five males continued without her consent for about two hours. (The anal intercourse the subject of the fifth and sixth Counts against the appellants occurred in this period.) She said that she then went to sleep and woke in the morning (pp 908 - 909).

[41]

The complainant's evidence at the first trial 54 A trial of the appellants on the charges now under consideration that commenced in November 2008 was aborted during the course of the evidence. Evidence given by the complainant at that trial was tendered at the trial the subject of the present appeals. 55 The complainant's evidence at the first trial included the following which related to the evening of 30 August: "Q. You told us that you got into bed and you wanted to go to sleep is that right? A. Yes. Q. At that time who else was in the room, the bedroom? A. There was Tyrone and [I] know that there was Peter because I heard his name being mentioned. Q. Right. Was that when you first got into bed? A. No. Q. Was that later? A. Yes. Q. I just want to concentrate now on when you first went into the room and got into bed, who else was in the bedroom then? A. I know, I definitely know that there was Tyrone and Li but at that time that's all I really knew. Q. Did anyone else come into the bedroom before you went to sleep? A. I am not sure. Q. All right. What was the last thing you remember before you went to sleep, how many people were there? A. I think three or four" (pp 1007 - 1008). 56 The complainant said that after the penile-vaginal intercourse that was occurring when she woke up finished, anal intercourse and simultaneous anal and vaginal intercourse subsequently occurred. 57 She gave the following further evidence: "Q. Who was present in that bedroom while firstly the penile/vaginal [referring to what was occurring when she awoke] acts occurred? … A. There was [Li], Tyrone and Peter. … Q. And who was present during the oral intercourse in the bedroom? A. The same three. Q. And who was present during the anal intercourse? A. The same three. Q. Whilst those sexual acts of intercourse were happening where were the people in the bedroom? A. Doing it. Q. I'm sorry I didn't hear that? A. Performing it. Q. Where were the persons? A. On the bed. Q. Did you say anything while the anal intercourse was occurring? A. I couldn't - I couldn't say whether it was at that actual moment in time but I did say that I was 15 and that I didn't want to do this but I couldn't say whether it was at that particular time. Q. Do you know whether you said that early on or towards the end or in the middle? A. Definitely early on. Q. Did you say anything else that you recall during this time? A. I was crying. Q. How much were you crying throughout the duration of this for how long? A. I'm not sure, on and off. Q. How did you feel physically whilst this was occurring? A. I was in pain" (pp 1011 - 1012). 58 Later in her evidence the complainant referred to her girlfriends leaving the house before she went to sleep. She said that "I was heavily intoxicated at the time and felt that I couldn't move. So at the time, yes, I did want to stay and sleep" (p 1023). 59 In describing why she had earlier changed her clothes in the bedroom in front of the men whom she described as being there, she said: "Like I said, I was intoxicated. If it happened today, I most definitely would [ask the men to leave the room] … I can't take back anything that happened. I can't say why I did this, why I didn't do that, but I'm assuming at the time my thoughts would have been, you know, 'This isn't my house' and whatever. And nothing had happened to me yet. I had no - I was not led to believe yet that these men were going to violate me in any way" (p 1049). 60 The complainant said that she had first met Chishimba and Makasa earlier that evening at Hungry Jack's and that she "knew nothing of [Mulenga] until when the incident was actually occurring. I heard Peter's name [being] spoken and that's the only way I've learnt to know of Peter and I don't know about the others" (p 1116). 61 The complainant did not refer in either of the interviews that she had with the police or in her evidence in chief at either of the trials to any of the men who were in the bedroom when she awoke being naked. However Dr Terence Yoong of the Child Protection Unit at Sydney Children's Hospital at Randwick, who saw the complainant at about 4.30pm on 1 September 2006, gave evidence in the second trial that he had recorded that the complainant told him that she "remembers waking up at approximately 1am on Thursday morning naked in bed surrounded by five naked men" and that she described "the five men as taking it in turns to have vaginal, oral and anal sex with her between 1am and 4pm on Thursday 31 August 2006". She told Dr Yoong that she was "released by the men" at 4.00pm on that day (pp 2821 - 2823). 62 It was presumably the giving of this evidence that led counsel who appeared for Chishimba at the first trial to put the questions appearing in the following passage to the complainant: "Q. What I'm suggesting to you is this, you reconstructed that Mr Chishimba, Tyrone Chishimba, was in the room that night as one of the people because that was one of the only names that you could come up with that night? A. No, that's not true. Q. But you were never able to identify him, were you? A. Because it was a time later and if you watch the video, I was given a choice of a lot of African men, and no offence, but a lot them looked very similar and I could not identify him exactly, no. Q. Did all of these five men that night in the shadows that were naked standing around your bed, did they all look similar, is that what you're saying? A. Yes. To me? Q. Yes? A. Maybe not to other people, but to me yes. Q. To you they did? A. Yes. Q. As you sit there today and as you think back to that night, do you still maintain that you were in that room surrounded by five naked black men? A. I don't - it sounds very dramatic the way you're putting it. I don't believe that they all just got naked and were all standing there. That's not really-- Q. Dramatic as it may or may not sound, is that your evidence as you sit there today, that you had five naked black men in the room with you that night? A. Yes. Q. And that's what you told the doctor, correct? A. Yes. Q. Have you been able to work out who these other two black men are? A. Not if I didn't know them. How would I possibly do that?" (pp 1118 - 1119). 63 The complainant gave the following evidence concerning the identity of the men in the bedroom during the evening: "Q. You've got five people according to you in a room. They all look similar and as you've just told us, they all had sex with you in that room at some point that evening. Fair enough? A. Fair enough. Q. Is it the case that they all did different things to you or one only did one or did they swap around - l don't mean to embarrass you, but how did it actually work? How did five people do what you claim they did? A. As I said before, to me they all look similar, so I couldn't say who was doing what at what time, so that's a little hard for me, but I know there was a particular time where I did know that it was Tyrone and I knew that it was him, because I recognised his face and he was the person that I did meet outside Hungry Jacks, so I can be a hundred percent sure on that. Q. But you didn't recognise his face. You wouldn't identify him when the police showed you photographs? A. Because it was a while later, yes. Maybe if the police - I mean the photo identification could have been much sooner after like my interview, I may have recognised him, but I didn't at the time, no and I also had to look through a lot of pictures of the same nationality men, that to me look quite similar. There are a couple that I thought might have been him, but I wasn't willing to make a judgment that I wasn't a hundred percent correct on, so I didn't pick out anyone for Tyrone" (p 1121). 64 The complainant said that when she woke up the door to the bedroom was "[p]artially open, letting some light in" (p 1130), that she did not know how long she had been asleep and that she woke up "[t]hrough someone having intercourse with me" (p 1184). She said that she was then still intoxicated but "I was less intoxicated than I was when I arrived at the premises but I definitely wouldn't say that I was sober by any means" (p 1186). 65 The complainant then gave the following evidence: "Q. Now when you woke up and you found this man having intercourse with you did you try to move him at all? A. I said that I didn't want to do it and I - well the answer to your question, no I didn't try to move him because like I said there were four other people in the room and I didn't think that I was up to fighting off five grown men, but I stated very clearly that I didn't want to do this at all and I was crying throughout. Q. I suggest to you that both of those last remarks that you've made are bare faced lies aren't they? A. No that's not true. Q. You woke up and you immediately saw one man on top of you, that's correct? A. Yes. Q. You were flat on your back, that's correct? A. Yes. Q. And then you looked around the room and saw four other men is that correct? A. I can't - when are you referring to? Q. You know that I'm referring to immediately when you woke up and you saw the man on top of you don't you? A. Yes, yes. Q. So you see the man on top of you, you're shocked, you're terrified and then you cast your eye around and see four other naked men is that right? A. I don't-- Q. Yes? A. Yeah. Q. Is that right? A. Yes. Q. And you say something to the man on top of you is that right? A. I said to stop. Q. And you didn't try to move even a little bit so that you would at least be indicating by your small movement that you didn't want this man penetrating you? A. Of course I moved a little bit but you're trying to say did you like try and - that's different to the question you asked, you asked did I try and move him off me, obviously I was squirming [apparently corrected from "screaming"] like obviously I didn't want to but no I didn't physically jump up and push him off. Q. This is the first time you've ever told anybody that you were just squirming isn't it? A. I've never had to talk about this in detail like this" (pp 1186 - 1187). "Q. How long did you attempt to indicate that you didn't want to have this act of intercourse perpetrated upon you? A. I was crying the whole time, it doesn't mean that-- Q. Did you ever say please don't do this? A. Yes. Q. You haven't told the police that did you? A. It says well they're not my exact words, you're trying to put words into my mouth now, it says that I don't want to do this and that I'm 15" (p 1189). 66 The complainant said that she could not say for how long the act of intercourse continued when she woke up: "Q. How long did this first man engage in intercourse with you for? A. I don't know. Q. Would it have been for more than a minute after you woke up? A. I couldn't say exactly" (p 1189). "Q. Now I'll take you back to the time when you woke up in the bedroom at around about midnight and there was a man - I withdraw that. You said there was people on you, do you recall saying that to the police? A. Yes. Q. What did you mean when you said there was people on you? A. That someone was having intercourse with me and that there were other people around. Q. You didn't mean that there was more than one person on top of you, you meant that there was only one and the rest were standing nearby? A. I think at the time - I can't recall exactly what was happening at that time right now. Q. Your evidence is that after the first one had finished with you another one started, is that right? A. Yes" (p 1203).

[43]

The evidence of Mr Chinyani 68 Makasa's flatmate, Mr Chinyani, gave evidence that he arrived home with his girlfriend, Ms Walker, at about 10.45pm. As he approached the front door he heard a "bed rocking" noise coming from Makasa's bedroom, and three male voices and one female voice. He identified the male voices as being those of the appellants. The door to Makasa's bedroom was shut. Whilst in his own bedroom he heard "laughing and bed rocking" (p 2665). He was not explicit in his evidence in chief as to whether the female voice he heard was laughing. In cross-examination at the second trial he agreed that evidence that he had given at the first trial that he "could hear the girl laughing with the voices of the male at the same time" was truthful (p 2678). After argument, the trial judge gave the Crown Prosecutor leave to cross-examine Mr Chinyani, a witness whom the prosecution had called to give evidence, on a statement that Mr Chinyani had given to the police on 1 September 2006. In that statement Mr Chinyani had referred to Makasa coming to his bedroom asking for condoms and to hearing a girl's voice about five minutes later. Mr Chinyani agreed with the Crown Prosecutor that the following, which appeared in the statement, was truthful: "I find it very hard to describe the girl's voice. It was like screaming but I can't say whether or not it was good or bad screaming. I find this hard to say. I can't say whether or not it was the sounds of someone enjoying sex or not. It's too hard for me to say that either way" (p 2759). 69 When then asked by the Crown Prosecutor whether he was mistaken when he said that he heard the sounds of a girl laughing coming from Makasa's room, Mr Chinyani replied "I would say no" (p 2760). In further cross-examination on behalf of Chishimba, Mr Chinyani said that he had mentioned in the first statement that he had given to the police (presumably that of 1 September 2006) that he had heard laughing. He also answered "yes" to the question immediately following which was "[a]nd the laughing you say that you heard, did that include laughing in a girl's voice?" (pp 2786 - 2787). 70 Mr Chinyani's girlfriend, Ms Walker, did not give any evidence that she heard a girl laughing.

[44]

Other witnesses 71 The Crown called many other witnesses to give evidence. These included a number of friends of the complainant who gave evidence of the events of 30 August 2006 which occurred prior to their departure from Makasa's home and evidence of complaints made by the complainant after she left Makasa's home on 31 August 2006. The Crown also called evidence from various police officers and medical experts. It is unnecessary for present purposes to refer to more than the following. 72 One of the complainant's friends, Ms Tekahukoheko, gave evidence that before she and a number of the friends left the house on the evening of 30 August 2006 she told the complainant, who was then in a bedroom (probably that of Mr Chinyani), that they were leaving. The complainant responded by saying "Okay" and then, according to Ms Tekahukoheko, "just looked at me and went back to sleep". Ms Tekahukoheko turned the light off, closed the door and left (pp 2419 - 2420). Ms Tekahukoheko said that it was she who had earlier taken the complainant into the bedroom. When she left the complainant in the bedroom and closed the door, the three appellants were in the loungeroom. She subsequently went back to the bedroom possibly two or three times to check on the complainant. The complainant was on the bed "under the cover" (pp 2418, 2433). She did not suggest that any men were in the bedroom on these occasions. 73 The evidence, given at the first trial, of another friend of the complainant's, Ms Bianca Pokai, was tendered in the second trial as Ms Pokai was unable to give evidence at the later trial. Her evidence was that the complainant was "passed out" in the loungeroom when the girls decided to leave and that she, Ms Pokai, asked the complainant if she wanted to come with them (p 3035). 74 Yet another of the complainant's friends, Ms Manu, who was then 18 years of age and a friend of the appellants, gave evidence that earlier in the evening, whilst she was at the nearby Meridian Hotel, Mulenga had said "I'm always horny, I haven't fucked anyone [for] ages" and "I have got to keep myself occupied because if I'm not occupied I'm thinking about sex" (p 2893). She said that the three appellants left the hotel at about 9.30pm and that "[t]hey were tipsy" (p 2894).

[47]

The Crown Prosecutor's final address 78 Relevant parts of the Crown's final address were as follows: "Some time later [the complainant] was awoken by an act of penile vaginal penetration. She described the man as a dark skinned male. At this time she stated that she was only 15. She didn't want to do this and she cried. This time [the complainant] believed that there was one man standing up near the bed, one man sitting on the bed and two men sitting on the floor" (pp 3433 - 3434). 79 The Crown Prosecutor told the jury that the Crown was not suggesting to it that there were in fact five men in Makasa's bedroom on the night of 30 August 2006. He suggested that the jury might well find that the complainant was mistaken in saying that there were five rather than three men present (p 3340). 80 The Crown Prosecutor said the following in relation to the question of joint criminal enterprise: "[The complainant], the Crown respectfully submits, was subjected to anal, vaginal and oral intercourse on the evening of the 30 th [of August 2006] and the Crown would submit to you that you would accept that there were times where there were sexual acts being perpetrated simultaneously, and her evidence is that at one stage whilst one was engaging in sexual intercourse with her, others were touching her chest and her body. The Crown says all were present in the room. They were heard to be laughing, you might think encouraging, cheering each other on. It was a small room where they were in and they were laughing. They had reached an understanding that they would have sexual intercourse with [the complainant] irrespective of whether she consented or not, they didn't care, and you're entitled not only to look at what happened in the room but you are entitled to look at all the circumstances, before the acts themselves, the overall conduct of the accused persons that evening, and their conduct afterwards, in making a determination whether you're satisfied that there was an arrangement or understanding with respect to the three accused to sexually assault [the complainant]. But you might think that the most compelling piece of evidence, the most convincing piece of evidence of an arrangement or an understanding, is that they were all there in the room together perpetrating acts, sexual acts upon her, and on occasions doing it simultaneously, because sometimes the best evidence of an understanding between people is what they're doing and what they're doing together, and when you consider what they did in the room and the leadup to [sic] circumstances, the Crown respectfully submits, there's only one conclusion that you can draw and that is that they'd all come to that understanding" (p 3484).

[49]

The trial judge's Summing-Up 82 The trial judge told the jury that the Crown relied upon the concept of joint criminal enterprise because it was "not able to prove beyond reasonable doubt which of the [appellants] physically committed which of the alleged offences" (pp 56 - 57). His Honour emphasised that it was necessary for the Crown to show "both the existence of [the] joint criminal enterprise and the participation in it by the accused person" (p 58). He instructed the jury in the following terms as to what constituted participation in a joint criminal enterprise: "Now members of the jury a person participates, that is an important word, 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 and with knowledge that the crime is to be, or is being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participants in the joint criminal enterprise to commit the crime. Now members of the jury if the agreed crime was committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission. Members of the jury in this present case it was the Crown Prosecutor's submission that the Crown has proved beyond reasonable doubt that at least by the time the alleged offences were being committed, the three accused had entered into an agreement, perhaps an unspoken agreement, to sexually assault [the complainant] in the manner she says she was assaulted. The Crown Prosecutor submits that the Crown has also proved beyond reasonable doubt that each of the three accused had participated in each of the alleged offences in the sense that each of them was present, each of them was either committing a sexual assault upon [the complainant] or could see that someone else was committing such an assault and that by being present in the circumstances that then existed they were at the very least giving encouragement to each other in the commission of the offences. The circumstances upon which the Crown relies to prove both the agreement to commit the offences and the participation of each of the three accused in that agreement are, I will just remind you, the Crown has to prove those two things, bear that in mind. It has to prove both the agreement to commit the offences and the participation of each of the three accused in that agreement and what the Crown relies upon is this. First it is [the complainant's] evidence that although she cannot say which accused person committed which type of sexual assault, that is vaginal, anal or oral, it is her evidence that every man present, be it three men or five men, had some form of sexual intercourse with her. Second it is [the complainant's] evidence that the only persons in the room at the time the offences were being committed were the men who sexually assaulted her. Third, it was [the complainant's] evidence that the men who were sexually assaulting her were taking it in turns and that in one instance at least two men were having intercourse with her simultaneously. Fourth, that all of this was taking place on a bed in a room about ten feet by ten feet and that it went on according to [the complainant] for a considerable length of time. Fifth, that [the complainant], then only fifteen years and eight months old, had stated her age, had said she did not want to do it and was crying from time to time. It is the Crown Prosecutor's submission that in those circumstances even if it be the case that one or more of her attackers did not actually hear her say how old she was, the totality of the circumstances disclose a situation where these three accused had agreed that they were going to have sexual intercourse with [the complainant] without her consent, knowing she was not consenting" (pp 59 - 61). 83 The trial judge reminded the jury that the first Count (and therefore the alternative charge in Count 2) related to "the very first incident where she woke up and her evidence is that someone had his penis in her vagina" (p 66). 84 After an extensive review of the evidence, the trial judge reminded the jury of aspects of the addresses of counsel. In relation to the number of men in Makasa's bedroom after the complainant said she woke up on the evening of 30 August 2006, his Honour said: "The crown prosecutor raised the question, 'Were there five men in the room?' He submitted to you that there were not and again, of course, members of the jury, you are not, of course, bound by that submission. The only evidence as to how many men were present is [the complainant's] evidence. She says there were five and she says it all went on for about 2 hours or more. You do not, of course, have to accept her evidence in that regard. It is entirely a matter for you. And so far as Mr McCrudden's [counsel for Mulenga at the trial] case is concerned, he of course has said nothing to the effect that there were not five men there. In fact, he referred to the fact that [the complainant] chose to take her bra off in the presence of five men" (p 328). 85 His Honour also said the following in connection with a reference that the Crown Prosecutor made to differences and inconsistencies in the complainant's evidence: "He also reminded you of what [the complainant] had told various people after the event. He conceded that there are, of course, differences and inconsistencies. However, the crown prosecutor posed the question, 'Is it not your experience that you sometimes tell different people different parts of what happened[?]' He suggested that there is an underlying consistency in what she said to the various people to whom she complained and he suggested that you would not forget that part of her evidence is that early on - after having left the premises - she was in a state of shock; but that is a matter for you too. The crown prosecutor then went on to remind you of the evidence of Jessie Manu, Athena Field, Sue Kean and the rest as to what [the complainant] said to each of them. It will all be fresh in your minds. It is only yesterday that I reminded you precisely of what was said by [the complainant] to each of those persons. The crown prosecutor put to you that there is a consistency in the complaints of [the complainant] that cannot be ignored. He said that people don't choose to tell everyone every detail. Further to that, people have different capacities to store information and to articulate. I think in saying that he is referring not only to [the complainant] herself but to the people to whom she was speaking. They have different capacities to absorb information and to understand information" (p 334). 86 His Honour said the following in relation to the Crown Prosecutor's address as to joint criminal enterprise: "It is the crown prosecutor's submission that on the evidence now before you, you would be satisfied beyond reasonable doubt that all three accused were in [Makasa's] room on the evening of 30 August, participating in sexual acts with [the complainant] as alleged in the indictment. They were engaged in a joint criminal enterprise to have sexual intercourse with her, whether she consented or not, and they were rotating, at times were committing sexual acts simultaneously and they were laughing and encouraging each other. The crown prosecutor submitted that a compelling piece of evidence in relation to joint criminal enterprise is that some acts were being committed simultaneously" (p 336). 87 In concluding his Summing-Up by describing to the jury the process by which its verdicts would be delivered, his Honour referred to the first Count as being "the allegation of vaginal intercourse … that's the occasion when [the complainant] says she woke up to find someone actively in the process of having sexual intercourse with her, vaginal intercourse" (p 415).

[50]

Evidence of a joint criminal enterprise 88 In its Written Submissions on the appeals, the Crown made the following submissions as to the evidence before the jury that warranted a conclusion that the appellants were parties to a joint enterprise involving one or more of them having sexual intercourse with the complainant without her consent and knowing that she was not consenting: "25 The circumstances of the instant case exceed those of 'non-accidental mere presence'. Firstly, the appellants were each present when the complainant awoke. Therefore, each of them had entered the small room whilst the girl was sleeping, and remained present during the period leading up to, and including, one of them having sexual intercourse with her, for the first time. They remained present whilst that occurred without intervening or leaving. It would have been obvious to them that she was drunk and asleep. Although they were acquitted of all remaining counts, it is plain that the jury accepted that they had further sexual intercourse with her in circumstances that did not establish a criminal offence. Nevertheless, their sexual interest in her as established by their conduct in this regard (and in the case of Makasa, his admitted sexual activity with her the following day) proved significant evidence of their intention to have sexual intercourse with her and intentional encouragement of each other in count 1. It was open to the jury to so find". 89 It is important for the purpose of considering whether verdicts are unreasonable and cannot be supported by the evidence to consider the totality of the relevant evidence that was before the jury (see Rasic at [25], [29] per Johnson J; Basten JA and R S Hulme J agreeing). To enable this to be done in the present case the evidence that was available for consideration on the point in question must be identified. That step is here of particular importance in light of the very precise way in which Count 1, upon which the appellants were convicted, was particularised and in light of the verdicts of not guilty returned on all the other Counts that charged that the appellants had sexual intercourse with the complainant knowing of a lack of consent on her part. 90 In its Written Submissions on appeal (see [88] above) the Crown did not rely upon some aspects of the evidence that it relied upon in its final address at the trial (as to which see [78] - [80] above). In taking this course the Crown recognised the limited basis upon which the appellants were convicted and their acquittal on other charges of sexual intercourse without consent. 91 The matters that the Crown put to the jury at the trial that it was not entitled to rely upon on appeal to support the verdicts of guilty on Count 1 were in my view as follows.

[51]

Subsequent sexual activity 92 First, the Crown relied at the trial on evidence "that there were times where there were sexual acts being perpetrated simultaneously" (see [80] above). The evidence of the complainant to this effect related to the period of time on the evening of 30 - 31 August 2006 that commenced after the complainant woke up in Makasa's bedroom and after the penile-vaginal intercourse that was then occurring had ceased. This evidence did not relate, at least in a direct sense, to the earlier point of time when the complainant said that she woke up to find one of the men having intercourse with her. Furthermore, in light of the jury's verdicts of not guilty on the Counts relating to the later period, the sexual acts that were the subject of this evidence were not acts that have been proved to have been unlawful (see [21] above). Accordingly, it would not have been open to the Crown to argue on appeal (and it did not do so) that evidence of sexual activity, not proved to have been unlawful, commencing in the period after the complainant woke up was evidence from which an inference might be drawn that the appellants had agreed prior to the complainant waking up that one or more of them would have sexual intercourse with her irrespective of whether she consented. As that subsequent sexual activity cannot be regarded as unlawful in light of the verdicts of acquittal in respect of it, evidence of it was not in my view capable of providing any support for a conclusion that the appellants earlier reached an agreement that they would engage in sexual activity that was unlawful. 93 The passage from the Crown's Written Submissions on appeal quoted above at [88] however contains the submission that the subsequent sexual activity on the evening of 30 - 31 August involving the appellants (and that of Makasa with the complainant during the day on 31 August) constituted "significant evidence of [the appellants'] intention to have sexual intercourse with [the complainant] and intentional encouragement of each other in count 1". Whilst I accept that evidence of that activity was capable of demonstrating the appellants' "sexual interest" in the complainant, that fact was not one of any assistance in proving that the appellants had an agreement to have unlawful sexual intercourse with the complainant. The sexual interest indicated by the subsequent sexual activity cannot, if the jury's verdicts of acquittal are to be respected, be regarded as involving any element of unlawfulness. Evidence of interest in having lawful sexual relations does not in my view constitute evidence that is of material assistance in proving interest in having unlawful sexual relations. 94 Furthermore, that evidence did not as the Crown contended (see the second last sentence of the quotation in [88] above) suggest that there was "intentional encouragement [by the appellants] of each other in count 1". Evidence of encouragement by the appellants of each other in lawful sexual activity is not evidence of encouragement in unlawful sexual activity such as that the subject of Count 1.

[60]

Location of Chishimba in the bedroom 105 In her first interview with the police the complainant said that Chishimba was sitting on the bed next to her when she awoke to find a man having penile-vaginal sexual intercourse with her and that Chishimba was the man to whom she was shortly afterwards forced to give oral sex (see [50] above, Questions 702 - 709). It is not possible to infer from the jury's verdicts whether or not it accepted this evidence. As it found not only Chishimba, but each of the appellants, guilty on Count 1, its verdicts on Count 1 were consistent with it concluding that wherever the appellants were situated in the bedroom at the time the sexual intercourse the subject of Count 1 occurred, it was able to infer the existence of a joint criminal enterprise. 106 However, as I explain below, the jury's verdict cannot be supported on the basis that it did not matter where the appellants were located in the bedroom. Chishimba's location in the bedroom is therefore significant on the question of whether it was open to the jury to find beyond reasonable doubt that he was a participant in a joint criminal enterprise (see [115] - [126] and [149] - [152] below). For reasons which follow, my view is that it was not open to the jury to conclude beyond reasonable doubt (if it did, which is not clear from the verdicts) that at the time that the event the subject of Count 1 occurred Chishimba was sitting on the bed next to the complainant, as distinct from being somewhere else in the bedroom. 107 First, although some light was coming through the partially open door, the bedroom was dark (see Question 671 at [49], and [64] above). Secondly, on her own evidence the complainant was still intoxicated and was waking from sleep (see [64] above). Thirdly, she had first met Chishimba only earlier that evening and at a time when she was intoxicated (see [14] above). Fourthly, she was unable subsequently to identify him (see [62] - [63] above). Fifthly, she gave other evidence about the scene to which she awoke that the Crown accepted was insupportable, that is, that there were five men present and that a number of them were standing around the bed naked (see [62], [65], [79] above). Sixthly, as indicated above (see [38]) the jury's verdict of not guilty on the various other Counts indicate that it cannot have been satisfied that the complainant's evidence of protestations commencing shortly after the event that was the subject of Count 1 was sufficiently reliable for it to be satisfied beyond reasonable doubt that the appellants were aware of the complainant's lack of consent. Seventhly, the appellant emphasised a number of times that she had difficulty distinguishing between the appellants (see [48] - [49] and [62] - [63] above). The following passage from the complainant's Record of Interview exemplifies those difficulties: " … I assume it's [Li] because it's his room and it's his stuff, so I'd say it was him [who gave her the basketball jersey] but, like, I didn't even know he was [Li] until, like, the next day when he was, like, and I didn't know that was Tyrone [Chishimba] until the next day when, like, everyone had gone. Like, do you get what I mean? Like, I discovered these things, like, later. So at this point in time, it was five random, five random guys so … earlier in the night, that [sic] just had walked us to their house but I hadn't even had a conversation with them. Like, I didn't know them from a bar of soap" (Questions 553 - 555). 108 In these circumstances it would have been unsafe for the jury to conclude that the Crown had proved beyond reasonable doubt that Chishimba was sitting on the bed when the complainant awoke.

[61]

The evidence as to the appellants' knowledge that one of the appellants commenced to have intercourse with the complainant whilst she was asleep 109 I return to what remains of the matters that the Crown relied upon on the appeal to support this point (see [98] above). These expressly included the proposition that the appellants knew that the complainant was asleep at the relevant time and implicitly included the proposition that they each knew that one of them commenced to have sexual intercourse with her whilst she was asleep. 110 The evidence as to these matters was as follows. 111 The primary evidence comprised the answers that the complainant gave in the answers to Questions 668 to 672 in her first Record of Interview (see [49] above). The following comments need to be made about that evidence. 112 First the complainant was not able to identify the man who was having intercourse with her when she woke up (see the answers to Questions 671 - 672). 113 Secondly her evidence was that there were five men in the bedroom when she woke up: one having sexual intercourse with her, "there's a couple of guys on the floor", "one guy standing up near the bed" and "another one sitting on the bed" (see answer to Question 670). 114 However the evidence at the trial from a number of witnesses who were at Makasa's home at various times on the evening of 30 - 31 August 2006 made it clear that there would have been no more than three men in the bedroom at the relevant time. As a consequence, the Crown told the jury that the Crown was not suggesting to it that there were in fact five men in the bedroom on that night and the Crown suggested that the jury might well find that the complainant was mistaken in saying that there were five men there (see [79] above). The Crown did not suggest otherwise on appeal. 115 As a result the complainant's evidence has to be considered upon the basis that two of the five men she said were present in the bedroom were not in fact there. Obviously one was having sexual intercourse with her. Her mistake as to the other two may have related to the man said to be on the bed, the one said to be standing or the "couple of" men said to be "on the floor". As there is no way of identifying the respect in which the complainant was mistaken, my view is that one has to test the sufficiency of the evidence at the trial to found the conviction of the appellants on Count 1 by assuming that the complainant was mistaken in the way most favourable to the appellants' cases on the question of whether the appellants knew that the complainant was asleep and that one of them commenced to have sexual intercourse with her. 116 This requires an assumption to be made that she was mistaken as to the presence of a man standing near the bed and another sitting on it as men in these positions could more readily be inferred to know what was occurring on the bed than men "on the floor" could. An indication, albeit slight, that in any event favours the making of this assumption is that in her answer to Question 670 (see [49] above) the complainant prefaced her references to the man standing near the bed and the man sitting on the bed by the words "I think", whereas she made no such qualification with reference to the men "on the floor". 117 As none of the appellants was identified by the complainant (see [105] - [108] above as to Chishimba's location), or can otherwise be identified, as the man having sexual intercourse with the complainant when she awoke, the question that then arises is whether evidence that an appellant was "on the floor" is, without more, capable of satisfying a jury that that appellant was aware that the complainant was asleep and that one of the other appellants had commenced to have sexual intercourse with her. For the following reasons, I do not see how it could. 118 First, although it appears from the complainant's evidence that, when she awoke, the bedroom door was partially open thereby letting some light in from the loungeroom (see [64] above), she said that the bedroom was a "dark room" at that time (see the answer to Question 671 quoted at [49] above). 119 Secondly the fact that the door to the bedroom was at the relevant time partially open despite the fact that Mr Chinyani might, presumably at any time, return home and readily hear any protestations of the complainant about any sexual activity taking place to which she did not consent when she awoke is a factor, albeit of limited strength, against the proposition that the appellants agreed that one or more of them would have sexual intercourse with the complainant knowing that, because she was asleep, she would not be consenting. According to a plan in evidence (p 464), entry to Makasa's bedroom was from the loungeroom, into which one entered through the front door of the home. It also indicated that if Mr Chinyani came through the front door, he would need to pass Makasa's bedroom to reach his own bedroom. In contrast to this situation, Makasa's bedroom door was closed when at a later time Mr Chinyani returned to the home and sexual activity was apparently occurring in Makasa's bedroom whilst the complainant was awake (Mr Chinyani having heard her voice through the closed door) (see [68] - [69] above). 120 Thirdly the appellants were aware that the complainant had been drinking heavily. The evidence does not provide any basis for concluding that they must have been aware that when intercourse first commenced the complainant was asleep, as distinct from being in a drunken or semi-drunken state that nevertheless left her conscious and capable of consenting to intercourse. 121 Fourthly, as pointed out above (see [38] above), non-acceptance of the complainant's evidence of protestations, at least those that the complainant said that she made at any early stage of the sexual activity that occurred on the evening of 30 - 31 August 2006 but which occurred after the commencement of the act the subject of Count 1, was implicit in the jury's verdicts of not guilty on various of the Counts. As a result it cannot be assumed or inferred that, when she awoke, the complainant by word or action indicated that she objected to the intercourse that was then occurring. To do otherwise would be to adopt a position inconsistent with that implicit in the acquittals, as the jury cannot have been satisfied beyond reasonable doubt that the complainant communicated an absence of consent at the time of or prior to the commencement of the sexual activity the subject of Counts 3 to 6. That activity followed closely upon the intercourse that was the subject of Count 1. On this basis there was thus no evidence that an appellant who was one of the men "on the floor" was alerted to the complainant's lack of consent before the act that was the subject of Count 1 concluded. 122 I note in any event that the complainant's evidence as to when she first indicated her lack of consent did not clearly indicate that that occurred before the sexual intercourse that was occurring when she awoke concluded (see [49] and [57] above). 123 Fifthly, neither the complainant's evidence nor any other evidence identified what the men "on the floor" were doing at the relevant time. The complainant said that before she had gone to sleep there were men "all random sitting down on the floor" (see [46] above). She did not say whether the two men who were on the floor when she woke up were sitting up, but, bearing in mind that the room was dark and that it must be assumed that there were no sounds or movements of protest from the complainant, it cannot be inferred that even if they were sitting rather than lying they were necessarily aware that a man on the bed had commenced to have sexual intercourse with the complainant. There was, for example, no evidence that in the presence of the others in the bedroom, an appellant who was standing removed his clothes and got on the bed with the complainant. The complainant did say that when she awoke she did not have on the jersey that she had put on before she went to sleep. However there was no way of knowing on the evidence who was responsible for its removal and who else, if anyone, was present when it was removed. 124 Sixthly, the evidence does not indicate how long the man on the bed had been on it before he commenced to have sexual intercourse with the complainant. Bearing in mind the evidence that the appellants were tipsy when they left the Hotel (see [74] above) and that they had returned with the girls to continue drinking at Makasa's home, the possibility that one of them was drunk, or partially so, and lay down on the bed for a considerable period of time before he commenced, without getting off the bed to take off his clothes, to have sexual intercourse with the complainant is a realistic one. 125 Similarly the possibility that two of the men were sitting on the floor without knowledge of the man on the bed having sexual intercourse with the complainant regardless of her consent, and doing so other than for the purpose of encouraging that man, is a realistic one. They may for example have been talking and drinking. As pointed out above (see [46]) the complainant gave evidence that a number of men had earlier been sitting on the floor in the bedroom. Them doing this was not regarded by the complainant as having a sinister connotation (see [59] above) and did not in fact appear to have a sinister purpose as the complainant was allowed without interference from any of the men to change her clothing in front of them and to go to sleep. 126 The position is even less favourable for the Crown if the assumption is not made that the two men "on the floor" were sitting up. The alternative is that they were lying down. Because of the drinking referred to in [14] and [74] above this is a realistic possibility. They may have been wholly or partially drunk. The fact that they were able to engage in the subsequent sexual activity is not necessarily inconsistent with this possibility.

[62]

Other evidence of the complainant 127 It is then necessary to consider whether there was any other evidence of the complainant (beyond that contained in her first Record of Interview, including that referred to in [111] above) that advanced the Crown's case. 128 Earlier in the first Record of Interview, the complainant is recorded as saying that the night of 30 - 31 August 2006 was "when all those boys were there and then they were just, like, speaking their little language and, like, I was so tired. I just, I just didn't do anything. I just let them do what they were doing and I thought, All right, then in the morning I can just go … when I am sober" (see [45] above). This evidence did not provide any specific assistance to the Crown in proving that one or more of the appellants had knowledge that one of the men commenced to have sexual intercourse with the complainant whilst she was asleep. 129 Later in the interview the complainant said: "I was just trying to go to sleep and, yeah, I can't remember but then I just remember, like, having sex, that's all. Like, I can't remember who started or what happened" (answer to Question 630 quoted in [47] above). Her answers to the questions which followed refer to a man having sex with her when she woke up but she did not identify who else was present or describe what they were doing at the time (see [47] above). This evidence also does not advance the Crown's case beyond that to which reference is made in [111] above. 130 Nor was the Crown's position on this point advanced by the complainant's evidence at the first trial. In that evidence she identified the three appellants as being present when she woke up but did not describe what they were then doing (see [57] above). 131 I have referred earlier to evidence given by Dr Terence Yoong that the complainant told him that she had woken up "surrounded by five naked men" (see [61] - [62] above). As I pointed out, this did not constitute evidence of the fact that the complainant was "surrounded by five naked men" when she woke up. Although the complainant assented to the proposition that this was so when it was put to her in cross-examination by counsel for Chishimba (see [62] above) she did not assert in either of her recorded interviews or in evidence in chief at either of the trials, or indeed in any other subsequent complaint of which evidence was given, that she woke up surrounded by five naked men. 132 In these circumstances, the Crown understandably did not at the trial suggest to the jury that it should find that the proposition was correct. Nor did the Crown do so on appeal. At the hearing of the appeals the Crown in fact disclaimed reliance upon the proposition (Appeal Transcript p 7). Such evidence as there was of it can accordingly be disregarded. 133 I referred earlier (see [72] above) to the evidence of Ms Tekahukoheko that when she left the house the complainant was in Mr Chinyani's bedroom "under the cover". The effect of her evidence was that the complainant was asleep, or near to being asleep, and was alone. The evidence of Ms Pokai (see [73] above) was that the complainant was "passed out" in the loungeroom when the girls left.

[64]

Principles as to encouragement 135 The jury directions formulated in Tangye (see [29] above) demonstrate that a joint criminal enterprise may be inferred from the circumstances in which persons participate in the commission of a crime and that participation for this purpose may, if those persons have "knowledge that the crime is to be or is being committed", be constituted "by [those persons] intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime". In the present case the Crown relied upon encouragement of this type to prove the existence of the suggested joint criminal enterprise. 136 After exclusion of those matters that I have said are not available to support the Crown's case on the existence of a joint criminal enterprise, the matters available to the Crown to rely upon on appeal to justify the jury verdicts are confined to those that I have listed in [98] above. These do not include evidence of any express acts of encouragement. If it were open to the jury to be satisfied beyond reasonable doubt that the appellants had encouraged the one of them who commenced to commit sexual intercourse with the complainant whilst she was asleep, the basis for such a conclusion would have to be found in those points that I have listed. In summary they amount to evidence of the appellants' presence in the bedroom at the time that the offence occurred in the particular circumstances there described. Even if it be assumed, contrary to the view that I have expressed (above at [134]), that there was evidence capable of satisfying the jury beyond reasonable doubt that the appellants were aware of the commission of the offence, a question that must be addressed is whether their presence in the bedroom was capable of amounting, in the circumstances in which it occurred, to encouragement in the relevant sense. 137 In R v Coney (1882) 8 QBD 534 two men who formed part of the crowd at an illegal prize-fight were convicted of assault, as being principals in the second degree (that is, as aiders and abettors). The jury had been directed by the trial judge that if the men "were not casually passing by, but stayed at the place, they encouraged [the fight] by their presence, although they did not say or do anything " (at 537). On appeal, the majority of the court held that this direction was not correct. Cave J, one of the majority judges, said: "Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon" (at 539). 138 Cave J went on to say: "This summing-up unfortunately appears to me capable of being understood in two different ways. It may mean either that mere presence unexplained is evidence of encouragement, and so of guilt, or that mere presence unexplained is conclusive proof of encouragement, and so of guilt. If the former is the correct meaning, I concur in the law so laid down, if the latter, I am unable to do so" (at 543). 139 Hawkins J, also in the majority, said the following: "In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent [it] and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted" (at 557 - 558). 140 In R v Russell [1933] VLR 59 the Victorian Full Court declined to set aside the conviction of a man who was found guilty of the manslaughter of his wife and children who met their deaths by drowning whilst in the presence of the accused. The jury had been asked to assume that the wife took the children into the water without the assistance of the accused. Cussen ACJ took the view that the jury would have understood from the directions that the trial judge gave to it that the judge was correctly indicating to them that "something in the nature of active participation, probably by affirmative words of encouragement or persuasion" (at 71) was required to be found. Mann J said the following: "I think the more correct view in the present case is that the prisoner on the facts supposed, while perhaps guilty of an independent crime, was certainly guilty as participator in the murder committed by his wife. The moral duty of the accused to save his children, the control which by law he has over his wife, and his moral duty to exercise that control, do not in this view cease to be elements in his crime. On the contrary, it is these elements which as a matter of law give to the acquiescence of the father in the acts of the mother committed in his presence the quality of participation" (at 75 - 76). 141 In Giorgianni v R [1985] HCA 29; (1984 - 1985) 156 CLR 473 Gibbs CJ, adopting the words of Cussen ACJ in R v Russell at 67, referred to the need for a person charged as a secondary party to the commission of a criminal act to be in some way "'linked in purpose with the person actually committing the crime'" (at 480). Mason J adopted the same passage from the judgment of Cussen ACJ (at 493). Wilson, Deane and Dawson JJ said that "[a]iding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence" (at 505). 142 I have referred above to Tangye (see [29]). The directions formulated in that case and which I have quoted include the statement that "[t]he presence of [the accused] at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime" (at 557). 143 In R v Cowell (New South Wales Court of Criminal Appeal, 26 July 1985, unreported) the appellant was convicted of indecent assault on the complainant who gave evidence that she was awakened at her home to find a man on her bed commencing to interfere with her sexually. Street CJ (with the concurrence of Lee and Wood JJ) said that: "She commenced to struggle and then she noticed the appellant who, she said, was naked standing beside the bed. She said that the appellant lifted a leg and made towards getting into the bed. At that stage [her] dog began to bark and one of the two men remarked 'We'd better get out of here'. They both then left. … As it is there is at least a slender body of evidence available from the material before the jury upon which to conclude that there was a prior agreement between the two men to carry out this attack. It would be difficult to infer the existence of a prior agreement merely from the circumstance mentioned in his Honour's summing-up, namely, that the appellant was standing naked beside the bed". 144 The Court held that the trial had miscarried. One of the reasons that it gave was "the prospect that the jury may have regarded the mere presence by the appellant in the room as enough to implicate him in criminality". 145 In Phan v R [2001] NSWCCA 29; (2001) 123 A Crim R 30 Wood CJ at CL said (with the concurrence of McClellan J and Smart AJ) that: " … mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission" (at [69]). 146 His Honour referred to the statement of Cussen ACJ in Russell that "assent may in some cases be properly found in the absence of dissent, or in the absence of what may be called effective dissent" and observed that in light of the "special relationship" which existed between the accused and the victims, the accused's "acquiescence or silence was properly capable of being understood as encouragement" in that case but that "there is no general principle by which assent or acquiescence, without more, will give rise to liability …" ([74] - [76]). 147 His Honour also made the following observation emphasising the important role that the Crown's onus of proving beyond reasonable doubt any criminal offence plays in this area: "81 It may well be that a particular fact or element of a crime may be perceived by a jury as something that upon a reasonable view was present, or as something which a reasonable mind might conclude was present. However, that is not the same as saying that such a matter has been proved beyond a reasonable doubt. Another possibility, even a contradictory possibility, may also be available as a 'reasonable view' or as something which a 'reasonable mind' could perceive as open. 82 The problem in this regard needs to be considered in the context that this was a circumstantial case in which the jury had to draw inferences. A critical inference, for a conviction of the appellant based upon the second limb [that is, the claim that the appellant was a principal in the second degree], was his non-accidental presence as an aider and abettor, in the way explained above. Unless that inference was the only rational inference available, then the proper verdict would have been one of acquittal …". 148 These authorities indicate that proof of "encouragement" of the commission of a crime ordinarily requires proof that the accused took some active steps to indicate to the perpetrator his or her approval of the perpetrator's conduct, such that the accused and the perpetrator may be regarded as being linked in purpose. Expressions, gestures and other actions, as well as words, will qualify as active steps if they are intended to communicate approval to the perpetrator of the perpetrator's actions. Mere presence when a crime is committed will not generally however so qualify unless the circumstances are exceptional, such as they were in Russell where the moral duty of a father to intervene to save his wife and children and exercise control over the situation gave to the father's presence and inaction "the quality of participation" in the wife's criminal acts (see [140] above).

[65]

Whether the appellants "encouraged" commission of the criminal act 149 There is no evidence of events or communications prior to the commission of the act of sexual intercourse that was the subject of Count 1 which was capable of assisting in proving that the appellants participated in a joint enterprise for one or more of them to have unlawful sexual intercourse with the complainant. Accordingly, for the appellants to be properly convicted on that Count the existence of the joint criminal enterprise had to be inferred from the circumstances in which that intercourse occurred. As the Crown accepted that there was no evidence capable of identifying which of the appellants had that intercourse with the complainant and as there was no evidence at the trial that any of the appellants said or did anything when this intercourse was taking place, proof of their guilt rested upon the nature of the inference to be drawn from their presence in Makasa's bedroom at that time. 150 Bearing in mind my conclusion that the evidence in relation to each of the appellants has be to regarded as rising no higher than that the appellant was "on the floor" (see [115] - [116] above), the evidence was not in my view capable of satisfying the jury beyond reasonable doubt that any of the appellants "encouraged" the person who had the unlawful sexual intercourse with the complainant in the performance of that act. I conclude this even assuming, contrary to my view (see [134] above) that it was proved beyond reasonable doubt that each appellant was aware of sexual intercourse occurring with the complainant whilst she was asleep. 151 The Crown submission on appeal as to encouragement, when shorn of matters that were not available to be taken into account (see [92] - [96], [100] - [104] above), amounted to a submission that the inference of a joint criminal enterprise should be drawn from the entry of the appellants into the bedroom whilst the complainant was sleeping and their failure to intervene or leave when one of the men commenced to have sexual intercourse with the complainant (see [98] above). This was not in my view a sufficient basis for the jury to conclude beyond reasonable doubt that the appellants encouraged the unlawful conduct. I recognise that there may be some circumstances in which presence without verbal communication may amount to encouragement to commit an unlawful act. For example, if the evidence had been that the appellants were standing around the bed and, as Mr Chinyani described as occurring at an apparently later point of time, laughing, the position may have been different. If they had stood there naked, that again may have led to a different result, although I note the observation in Cowell as to the difficulty of inferring a prior agreement to commit an unlawful sexual assault simply from the fact that the appellant in that case was standing naked beside the bed (see [143] above). However lying or sitting on the floor in the darkened bedroom without (so far as the evidence suggested) making any sound, cannot in my view be regarded as evincing an encouragement to the perpetrator of the act who in these circumstances cannot even be assumed to have necessarily had the other appellants in his vision. 152 The apparent entry of the appellants in this case into Makasa's bedroom whilst the complainant was asleep is the strongest point in favour of the Crown's case but that cannot to my mind be regarded as pointing unequivocally to the existence of the joint criminal enterprise alleged, particularly when the evidence as to their position thereafter must be treated as evidence that each was "on the floor" (see [115] - [116] above), that there was no evidence as to how long after their entry into the room that the sexual intercourse commenced and that earlier in the evening a number of them had been sitting on the floor in the darkened bedroom for a purpose that cannot be inferred to have been otherwise than innocent (see [125] above). Their presence "on the floor" was consistent with their sleeping or attempting to sleep after having drunk to excess over a long period, or sitting and drinking and/or talking. Encouragement of unlawful sexual intercourse with the complainant is not the only rational explanation for their presence (c.f. Phan [82] quoted in [147] above) (see also [125] - [126] above). The appellants' guilt had to be proved, not on the balance of probabilities, but beyond reasonable doubt.

[67]

The complainant's evidence that she was asleep 156 Counsel for Makasa contended on the appeal that the complainant's evidence that she was asleep when the act the subject of Count 1 commenced should be regarded as unreliable. The jury's verdicts of acquittal upon the other Counts relating to the evening of 30 - 31 August and on the Counts against Makasa relating to the following day that alleged that the complainant did not consent and that Makasa was aware of that lack of consent were relied upon in this respect. Further, counsel for Makasa submitted that there were instances in the complainant's evidence of the complainant's recollection being "demonstrably wrong" and that the complainant made "false attributions of blame" and "false or implausible representations" to persons to whom she later complained. 157 There is force in these submissions but the jury's verdicts indicate, as would be expected, that it gave careful consideration to the credit of the complainant. As the trial judge pointed out in his Remarks on Sentence (see [21] above), the only sensible explanation for the jury returning verdicts of guilty on Count 1 and not on the other Counts to which I have referred is that it accepted the complainant's evidence that she was asleep at the time that the act that was the subject of Count 1 commenced and that she was therefore unable to, and did not, consent. On the other hand the jury appears not to have accepted the complainant's evidence that she communicated a lack of consent to the sexual activity that occurred after she awoke on the evening of 30 - 31 August and during the day on 31 August. That latter evidence was expressed in terms that the jury could well have regarded as not convincing and could well have provided the basis, when taken with inconsistencies and deficiencies in other evidence given by the complainant, for not accepting her evidence on this topic. The unsatisfactory nature of the complainant's evidence of protestations is exemplified by the evidence quoted at [49] and [57] above. 158 In contrast, the complainant's evidence that she was asleep at the time of the act the subject of Count 1 was given in a clearer fashion and the jury may have distinguished it on that basis from her other evidence. 159 If this had been the only matter advanced by the appellants it would not have persuaded me that the convictions on Count 1 were unreasonable and unable to be supported upon the basis of the evidence before the jury. However bearing in mind that the complainant was on her own evidence intoxicated at the relevant time, some uncertainty must exist about her evidence as to when she was, and when she was not, asleep and I regard this point as reinforcing in a limited fashion the overall view that I have taken that the verdicts of guilty on Count 1 are unsafe.

[71]

Recklessness 165 Mulenga's counsel contended that the trial judge's directions to the jury concerning recklessness were erroneous. Those directions included the following: "… If the Crown has in your opinion established beyond reasonable doubt that the accused person had sexual intercourse with [the complainant] without her consent and the accused was reckless as to whether [the complainant] consented to the sexual intercourse then it is the law that the accused would be taken to know that [the complainant] did not consent to the sexual intercourse. To establish the accused was acting recklessly the Crown must prove beyond reasonable doubt either, first that the accused person's state of mind was such that he simply failed to consider whether or not [the complainant] was consenting at all and just went ahead with the act of sexual intercourse even though the risk that [the complainant] was not consenting would have been obvious to someone with the accused person's mental capacity if he had turned his mind to it. Or, second, that the accused's state of mind was such that he realised the possibility that [the complainant] was not consenting but went ahead regardless of whether she was consenting or not. Again that is a wholly subjective test. What matters is what was in the accused person's own mind, not what you would have thought or believed or what a reasonable person would have thought or believed" (p 70). 166 These directions gave effect to s 61R(1) Crimes Act (see now s 61HA(3)(b)) which was in the following terms: "For the purposes of sections 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person 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". 167 Mulenga's counsel submitted that "s 61R has no application to attribution of mental states to third parties who are not the actual perpetrators of the offence. As a matter of statutory construction s 61R does not operate to attribute the relevant mental state to such parties alleged to [be] part of a joint criminal enterprise" (Written Submissions [3.72]). The effect of his submissions was that, as the complainant was not able to identify the actual perpetrator in respect of Count 1, the trial judge should not have directed the jury that recklessness, rather than knowledge, of the appellants as to the consent of the complainant was sufficient for the Count to be made out. 168 Under Count 1 the appellants were charged with an offence against s 61J Crimes Act. The elements of that offence were set out in Count 1 of the indictment (see [7] above). Whilst s 61J refers to knowledge of lack of consent, s 61R provided that a person was taken to know of an absence of consent to sexual intercourse if the person was reckless as to that fact. 169 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 submission should be rejected. 170 I should add that I do not consider that the decision of the High Court in Giorgianni bears upon the present question, as it was concerned with the concept of aiding and abetting (where liability is derivative and secondary) rather than that of joint criminal enterprise (where liability is primary and not derivative: Osland at [72]) with which the present case is concerned. On the other hand the decision of this Court in R v Jacobs [2004] NSWCCA 462 (2004) 151 A Crim R 452 provides support for the view that I have taken (see [187] - [229]).

[82]

(7) The effect of the above orders is that the appellants Chishimba, Makasa and Mulenga are entitled to be released from custody immediately. 180 JAMES J: I agree with Macfarlan JA. 181 McCALLUM J: I have read in draft the judgment of Macfarlan JA. With great respect to his Honour, I do not agree with his analysis of the evidence or with his conclusion as to count one. My review of the record of the trial has satisfied me that it was well open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt as to the guilt of each appellant on that count. I respectfully agree with his Honour's conclusions as to the remaining grounds of appeal. I would dismiss the appeals against conviction. 182 Since mine is a dissenting view as to the conviction appeals, it is unnecessary to consider the Crown appeal other than on the premise that the convictions of all three appellants on count one are to be quashed. On that basis, I agree with Macfarlan JA as to the determination of the Crown appeal. I agree with orders (1), (2), (5), (6) and (7) proposed by his Honour. I do not agree with proposed orders (3) and (4). 183 It was acknowledged in the appeal (at least on behalf of Li Makasa and apparently implicitly by the other appellants) that, as a matter of law, there was evidence capable of sustaining a verdict. Accordingly, the success of the appellants' submissions as to the alleged unreasonableness of the verdict rested on the contention that, applying the test stated in M v R (1994) 181 CLR 487 at 494, the complainant's evidence, "upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force" so as to warrant the intervention of this Court, notwithstanding the advantages enjoyed by the jury. 184 Counsel for Li Makasa in the appeal provided detailed written submissions setting out a careful and well-reasoned analysis of alleged discrepancies and inadequacies in the complainant's evidence relied upon in support of that contention. I have given careful consideration to those matters against my own reading of the evidence of the complainant. In my view, although there were some discrepancies in her evidence, it did have an underlying consistency, as submitted by the Crown. The complainant is plainly an intelligent woman. On the whole, she stood up well to lengthy, repetitive and often confused cross-examination. She was at times difficult and argumentative. At other times, her evidence was eminently reasonable in the face of argumentative cross-examination. I am not moved by the matters raised by the appellants to think the jury could not reasonably have relied on her evidence to convict the appellants on count one. 185 As explained by Brennan CJ in Jones v R [1997] HCA 56; (1997) 191 CLR 439 at 443, it is a relatively rare case in which a guilty verdict, reached in the circumstance where (as conceded in the present case) there is evidence capable of sustaining the verdict as a matter of law, can be impugned on the strength of a different appreciation of the facts on the part of this Court. 186 An inconsistency in verdicts may show that a verdict is unreasonable but that is not the present case. Macfarlan JA has set out the trial judge's analysis of the verdicts returned by the jury and has expressed his agreement with that analysis. It was acknowledged by the appellants that the verdicts could be analysed in that way and were not inconsistent. 187 As to count one, the trial judge noted that the jury must have been satisfied beyond reasonable doubt that the complainant awoke to find someone having penile-vaginal intercourse with her. The jury must also have been satisfied beyond reasonable doubt, not only that she had not consented to that intercourse, but also that the men present in the room knew she was not consenting. The trial judge also noted the likelihood that, as to the alternative counts of sexual intercourse with a person over 14 and under 16, the acquittal was based on the Crown's failure to exclude honest and reasonable belief that the complainant was over 16 (rather than failure to prove that the acts of intercourse took place). 188 Although the trial was run on a different basis, counsel for Mr Chishimba submitted on sentence that the judge should find that the complainant consented to the conduct the subject of counts 3 and 5 (alleged acts of oral intercourse and anal intercourse respectively). It is difficult to reconcile that submission with Mr Chishimba's case put at the trial, which appeared to be that he was not in the room at the time of the sexual activity complained of. 189 In any event, the trial judge was not satisfied on the balance of probabilities (for the purpose of sentencing) that the complainant did consent to those acts. His Honour thought (correctly, in my view) that the jury's verdicts meant no more than that they were not satisfied beyond reasonable doubt that the complainant had not consented, or were not satisfied beyond reasonable doubt that the accused knew she was not consenting. The judge accepted a submission, again put on behalf of Mr Chishimba, that the best explanation for the jury's verdicts of guilty on the first count was that they accepted the complainant's evidence that she was asleep when that offence commenced and was therefore not able to consent.

[83]

190 Beyond the need to consider the evidence in accordance with those premises, I do not think it is either necessary or appropriate to draw any conclusions as to the complainant's credibility from the fact that the jury acquitted the appellants of counts three to six. I do not think that the acquittals in the present case are amenable to the same analysis as was available on the facts in Jones (at 453.5 per Gaudron, McHugh and Gummow JJ). 191 As explained by Simpson J in TK v R [2009] NSWCCA 151 at [127] (Latham J agreeing at [204]), the approach taken in Jones "goes beyond the whole of the evidence and includes an examination of the significance of the acquittals, and what can be read into those verdicts". 192 Macfarlan JA has concluded, by reference to the reasoning in Jones, that the complainant's evidence in the present case that she did not consent to the sexual activity the subject of counts three and five or that she communicated that lack of consent to the appellants "lacked sufficient cogency to convict": Jones at 455. On that basis, his Honour would exclude the complainant's evidence of "protestations" from consideration as part of the evidence of the existence of a joint enterprise to commit a criminal act. 193 On my reading of the evidence, the complainant did not purport to have communicated her lack of consent so clearly and loudly at any point that no one could have misunderstood her state of mind. Her evidence is replete with concessions as to the things she might have said and done differently to articulate her protest. Accordingly, there was a rational basis for acquitting the appellants on counts 3 and 5 without rejecting the evidence of the complainant's protestations, such as they were. 194 Further, the uncontested evidence in the present case was that the complainant was asleep when the sexual intercourse on which count one was based began. The point at which a continuing absence of vigorous protest from a person awakening to such conduct might sustain a reasonable doubt as to knowledge of the absence of consent was very much a matter for the jury. It was rational for them to draw a distinction between count one and the other counts on that basis. For those reasons, I think it is wrong to approach the present task on the basis that the assessment of the cogency of the complainant's evidence should be informed by the jury's acquittals. 195 For my part, I do not feel confident in dismissing any part of the complainant's evidence from consideration on the present appeal. I do not think the jury's acquittals on the other counts warrant or demand such an approach. That approach comes into play only if there is no rational explanation for the diverse verdicts: TK at [137]. In a case which does not warrant the Jones approach or entail inconsistent verdicts, the proper approach to an appeal based on the alleged unreasonableness of the verdict is to consider the whole of the record. 196 The critical task is to determine whether, giving appropriate deference to the constitutional role of the jury as the primary arbiter of guilt and recognising the advantages of their position, it may be concluded that it was not open to them upon the whole of the evidence in the present case to convict on count one on the basis of a joint enterprise. The advantage enjoyed by the jury over this Court in seeing and hearing the evidence was significant. 197 The trial under appeal was a "subsequent trial" of sexual offence proceedings for the purposes of the Criminal Procedure Act 1986 (chapter 6, part 5, division 4). At the earlier trial, the complainant's evidence-in-chief consisted of the tapes of two interviews she gave to police within a week after the relevant events and some additional oral evidence. She was cross-examined at length at that trial by each of the three barristers then representing the appellants, and briefly re-examined. 198 That evidence comprised the "original evidence" of the complainant for the purpose of s 306I of the Criminal Procedure Act. At the trial under appeal, all of that evidence was admitted (with some limited editing). In addition, there was further cross-examination of the complainant by each of the barristers then representing the appellants, as contemplated by s 306J of the Act. On my reading of the transcript, the provision that permits such further cross-examination was given a liberal interpretation in the present case. 199 Accordingly, the jury watched the complainant on a number of DVDs over many days, first in the two records of interview, which were conducted when she was fifteen, and then when she was cross-examined at length at the earlier trial, when she was seventeen. They then watched her cross-examined further, by closed circuit video link at the trial, when she was eighteen. The cross-examination by two of the three barristers then representing the appellants was lengthy. 200 Of all of that evidence, this Court has only transcript. The impossibility of replicating the atmosphere of the trial in those circumstances is manifest. Further, the issues to be determined in the trial of the appellants were, in my view, very much of the kind best judged with "the collective endowments of a jury": Jones at 442.6 per Brennan CJ. Mindful of its inherent constraints, I have given close attention to the written record of the present trial. That undertaking has not left me in any doubt as to the verdicts of guilty on count one returned by the jury. The following summary is necessarily incomplete, but it is an attempt to identify the primary considerations that have informed my conclusion. 201 There was evidence to establish the following matters. Li Makasa and Tyrone Chishimba encountered six young females and one young male (Adam) drinking on the street. They knew some of them but not the complainant. They invited the group back to Li Makasa's apartment. At 6.12pm Tyrone Chishimba sent an SMS message to Peter Mulenga from Li Makasa's mobile telephone saying "Bro there's honeys at Li's. Come over. Tyrone". In due course, Peter Mulenga arrived at Li's in response to that message. 202 The complainant was extremely drunk and began vomiting shortly after she arrived at the apartment. At some point, she was taken to the flatmate's bed where she also vomited. At some point she was taken outside where she passed out. 203 The complainant's evidence in the first record of interview with police was that she later came back inside by "tripping up the stairs and landing inside" (AB 884). Notwithstanding some inconsistencies in the evidence as to the sequence of various events that night, it was plainly open to the jury to conclude that all of the other girls and Adam had left by the time of the events she described next. 204 The complainant said that when she fell into the lounge room there were three people in there. She was told to go into Li Makasa's bedroom where there were two more people. There were five men in all, including Li Makasa and Tyrone Chishimba. The complainant was saying she just wanted to go to sleep and they told her she couldn't sleep unless she changed her clothes because they had vomit on them (AB 886). She took off her top and her bra and put on a yellow jersey with "Champion" written on it. She also put a sarong around her hips and removed her tracksuit pants from underneath and probably also her underpants (see AB 888; 989 and 1184). 205 The complainant described the position of the men in the room (before she went to sleep) in different ways. When she was describing the room (at AB 891) she said: "And they're all random sitting down on the floor and, yeah, there's little people on the floor." 206 However, shortly after that, she said there were two people in the room already who were "standing there doing nothing" and three who followed her into the room (AB 892 to 893). Subsequently, she said that when she was trying to get to sleep, Li Makasa was sitting on the bed and "there were, like, four guys just standing over there" (AB 898). 207 When the complainant awoke, a man she does not purport to identify was having sexual intercourse with her. The record of interview includes the following exchange (at AB 903): "Q667 He was on top of you. Did he say anything to you when he was on top of you? A Not that I can remember. Q668 And did you say anything to him? A No, I was just silent. Q669 … A Oh, I said a couple of times, like, I don't want, I was crying 'cause it was hurting… Q670 And what, when, you said you were crying and it was hurting. At that stage, what could you see in the room? A Just, like, there's a couple of guys on the floor. There was, like, I think, one guy standing up near the bed. I think there was another one sitting on the bed. Then there was this one, like, was, OK."

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208 When the complainant was going to sleep, the door was open and she was wearing the yellow jersey. When she awoke to a man having sexual intercourse with her, the door was mostly closed (AB 903) and the shirt was gone (AB 904 to 905). 209 I do not agree that the evidence of other witnesses made it clear that there would have been no more than three men in the bedroom at that time. I do not think it is appropriate to consider the complainant's evidence on the basis that two of the five men she said were present were not in fact there. 210 Although the appellants did not adduce any evidence at the trial, a version of events was put forward on behalf of each of them through cross-examination and in their counsel's addresses to the jury. Cross-examination on behalf of Li Makasa at both trials mostly addressed the events of the following day. His counsel cross-examined the complainant at the first trial on the basis that any sexual conduct with Li Makasa "be it the night before or be it that day" was consensual. It was not put to her that there was no sexual activity between her and Li Makasa on the evening of 30 August 2006. At the trial under appeal, his counsel addressed the jury on the basis that there was no evidence capable of proving beyond reasonable doubt that Li Makasa was in his room at the time of the alleged offences that evening. 211 Counsel for Tyrone Chishimba addressed the jury on a similar basis. However, whereas his counsel at the first trial cross-examined the complainant on the basis that there had been no conversation between Tyrone Chishimba and the complainant other than when he said goodbye to her, different counsel at the second trial put it to the complainant, in effect, that she had made sexual overtures to Tyrone Chishimba. That exchange began as follows: "Q. You had a conversation with him and during that conversation, just the two of you, and during that conversation you told him that you were born in New Zealand and you actually, when you said that you put on a Kiwi accent, do you remember that? A. That's interesting, that I've only put on a Kiwi accent that, when I told that him that I was born in that country, but, listen, I don't remember saying that, no, but I do at the time, at the time I did have a lot of Maori friends, I, that's kind of who I knocked about with in my younger days. I wanted at the time to visit New Zealand, so -" 212 The judge then reminded the complainant of the need not to go beyond a simple answer to the question. The cross-examination continued: "[COUNSEL] Q. There was also a time that evening when you were on your own with Mr Chishimba, with Tyrone, where you said to him you wanted to hook up with him as well? HIS HONOUR: What? Q. You wanted to hook up with him, didn't you? A. No. Q. You touched him, you touched him on his pants? A. That's not true. Q. And he asked you at that time whether or not Li was your boyfriend, didn't he? A. Li? Q. Yes? A. So we've just met together and now Tyrone is asking-- Q. I'm just asking you, [complainant], do you understand the question? A. I'm verifying the, I'm-- Q. I'll repeat the question to you? A. Okay. Q. You asked him, I beg your pardon, withdraw "him", he asked you whether or not Li was your boyfriend? A. He didn't. Q. And then he said to you at that time, he said to you that he'd already had sex that night, or already hooked up with Bianca? A. That's not true, I found out from someone else. Q. And then he said to you something along the lines of why don't you hook up with Peter? A. That's not true. I'd never heard Peter's name until these acts were taking place and that's how the police came, about arresting him, I think, because that's the only information I can give them about Peter, the only-- HIS HONOUR: Look, please don't go on. [COUNSEL]: Thank you, your Honour. Q. Then Li left the room, didn't he? A. Who? Q. Tyrone? A. Oh, after all that stuff you just made up?" 213 Accordingly, at least so far as Tyrone Chishimba is concerned, the case put was that the complainant apparently wanted to have some sort of sexual activity with him and that he declined but invited her attention to one of the other accused. 214 Peter Mulenga's case was that any sexual intercourse was consensual and that the Crown had not proved beyond reasonable doubt that he did not have an honest and reasonable belief that the complainant was over the age of sixteen. His counsel cross-examined the complainant at the first trial to the effect that, when the complainant changed her clothes in Li Makasa's bedroom, the men in the room "had to be in there to see [her]" (AB 1183). The suggestion appears to have been that she deliberately incited their interest. He pursued a similar line at the second trial when he put it to the complainant that she was in the habit of asking boys (at the refuge at which she then lived) whether she was pretty. That line produced the following exchange (at AB 1751): "Q. You see, this attitude of yours of seeking to attract attention which caused you to have intercourse with several men on the night of 29 August, isn't it" A. No, that's not true at all. I can think I'm pretty and get raped. That's very possible. How is that not a possible scenario, and I'm attractive and I can still get raped. It doesn't mean I was running around screaming for them. Even if I said "Do you think I'm pretty?" does not give them the right to touch me without consent." 215 What the jury made of the suggestion that the complainant thought she was pretty, and so sought to attract attention of the kind that results in sexual intercourse with several men, after she had vomited all over herself is a matter of speculation. 216 Peter Mulenga was the only one of the appellants to agree to be interviewed by police. The jury watched the tape of that interview. A transcript of it was before this court. 217 Mr Mulenga made a series of statements during the interview which were left to the jury as deliberate lies (see AB 3485) including that he had not gone into Li Makasa's house upon his return from the Meridian; that he had not gone into Li Makasa's bedroom at all that night and that he had never had sex at Li Makasa's house. 218 In addition, his description of events disclosed his appreciation of the state the complainant was in earlier in the evening. He said "we found this girl, she was blacked out, still had vomit all over her, I found her outside. She was on the lawn." Significantly, Mr Mulenga also told police that he was talking on the telephone to his girlfriend outside while Tyrone Chishimba and Li Makasa were inside after they all returned from the Meridian. No telephone record substantiated that statement and it was also left to the jury as a deliberate lie. 219 As noted by the trial judge in his remarks on sentence, it is likely in light of the evidence of the complainant, together with the evidence of Mr Chinyani and the DNA evidence, that the jury would have been satisfied that many acts of sexual intercourse took place in Li Makasa's bedroom on the evening in question (AB 31 to 32). Mr Chinyani's evidence provided cogent evidence directly implicating the three appellants in participating in such conduct, together in the room at the same time and with the door shut. The only way in which Mr Chinyani's evidence undermined the Crown case was on the issue of consent. However, his evidence touching on that issue (as to hearing laughter) was unlikely to have related to the time when the sexual intercourse first began.

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220 I accept, as noted by Macfarlan JA, that any sexual intercourse after the intercourse on which the first count was based was not proved to have been unlawful. However it does not follow, in my view, that the only inference to be drawn from such conduct is of an interest in having only lawful sexual relations. In my view, it was open to the jury to conclude that later sexual activity demonstrated the appellants' sexual interest in the complainant, and their preparedness to engage in such conduct with her in each other's presence. 221 It was plainly open to the jury to take those matters into account in determining whether they were satisfied as to the existence of an agreement to have sexual intercourse with the complainant. Separately, it was open to them to reason that the agreement must have been to have such intercourse irrespective of whether or not the complainant consented, since she was asleep when it began. I do not think those conclusions impugn the jury's acquittals. 222 Between the time when the complainant fell asleep and when she awoke, the uncontradicted evidence is that somebody must have closed the sliding door at least most of the way (it was shut when Mr Chinyani got home) and that somebody must have removed her shirt. On her evidence, she had gone to bed saying that all she wanted to do was sleep. I do not have any difficulty concluding, in those circumstances, that it was open to the jury to be satisfied beyond reasonable doubt that the commencement of sexual intercourse with her in that state by one of the men was evidence of an implicit agreement with the others to engage in sexual intercourse with her regardless of whether or not she consented. 223 I reject the submission put on behalf of the appellants that the evidence did not go beyond establishing "mere presence" in the room where the offences were alleged to have taken place. The inference available to be drawn from a person's presence while another person commits an offence will vary according to the facts of the case. The presence of a man in a pub with a friend when a fight breaks out has a different complexion from the presence of a man in a small bedroom with the door mostly closed when a friend begins to have sexual intercourse with a drunken girl who is asleep on the bed. The failure to leave or intervene during such conduct is more significant. I do not characterise it as "mere presence". 224 In my view it was open to the jury, bringing its common sense and experience of the world to bear, to infer the existence of an implicit agreement and intentional encouragement or assistance on the part of each appellant by their presence in the room in those circumstances.