Rajendran v R

The indictment identified s 61J(1) of the Crimes Act 1900 as the statutory basis for the charge. 5 Section 61J(1) is in the following terms: "61J(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years."

Sub-section (2) identifies "circumstances of aggravation", and includes: "(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby …" 6 Section 61J provides for the aggravated form of the offence created by s 61I. That section provides: "61I Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years." 7 The Crown prosecutor is recorded, in opening the Crown case to the jury, as having said: "What is also alleged is that [the complainant] suffered actual bodily harm. The actual bodily harm here is not of the most serious kind but it is something the Crown alleges interfered with her health and comfort. You will see in the course of the Crown trial (sic) some grazing to her back which is what the Crown says is the actual bodily harm. If that is not sufficient to prove actual bodily harm it's the Crown case that the Crown would still be able to prove to you a case of sexual intercourse without consent, the accused knowing that [the complainant] was not consenting without those circumstances of aggravation." 8 The complainant's evidence, upon which the Crown case depended, was as follows. She understood that the meeting with the appellant was to be at a coffee shop; instead, the appellant took her to a bar. She asked for water, but the appellant purchased champagne. They engaged in conversation, with the appellant telling the complainant that he worked for La Perla, a fashion and lingerie company, and was looking for "fresh faces" for models in Australia. They remained in the bar for a couple of hours, during which time the appellant purchased for the complainant four glasses of champagne, of which she consumed three and a half glasses, and the appellant consumed four beers. The complainant was feeling affected by the alcohol. She and the appellant left the bar and walked to an office building nearby, and entered an office where the appellant showed the complainant some computer images. This was in fact the appellant's workplace, but it had nothing to do with a company called La Perla, or with modelling. After a time the appellant turned off the lights, then attempted to kiss the complainant. She resisted, he apologised, but then again attempted to kiss her. The complainant found herself sitting on a desk, the appellant leaning over her, still trying to kiss her. The next thing she remembered was lying on the floor in the same office. She was crying, and she was very frightened. She had no clothes on except a skirt that was around her waist. The other clothing she had been wearing earlier had been removed. The appellant was wearing his shirt, but his pants had been removed. He was applying a condom. His penis was erect. The complainant began to cry again. She said that she knew what was going to happen but could not do anything about it "because I was so out of it at that time". 9 The appellant put his body directly over hers, his arms on either side of her body, and inserted his penis into her vagina. The complainant became hysterical. She was in pain. The appellant asked why she was crying and told her to stop crying. He kissed her left breast. 10 The complainant dressed herself. The appellant told her that what happened was "between me and him", that she was not to tell anybody about it, and that, if she did not tell anybody, he would make her into a big model. 11 The complainant and the appellant left the building together. The complainant was still crying. They walked in the street for a short time, but, at some time, the appellant simply disappeared. The complainant found her mobile telephone and contacted a friend. She was then assisted by some female passers by, who saw that she was in distress. They called police, who took the complainant to the Royal Prince Alfred Hospital. The following day the complainant, with police officers, returned to the Hunter Street area, where the complainant attempted to identify the building where the events had taken place. They then returned to a police station, where some photographs were taken of her lower back, which showed "some marks". This was the "actual bodily harm" relied upon as evidencing the circumstance of aggravation pleaded in the indictment. 12 The complainant did not initially give evidence of any injury occasioned to her during these events. However, when asked about the photographs at the police station, she was prompted to recall that, at the time she was lying on the floor, she had felt "heaps of pressure" on her back. This, it appears, was immediately before the sexual intercourse took place. 13 The appellant was interviewed by police on 13 March 2009. He gave an account of having met the complainant, and of having consensual sexual intercourse. The record of the interview was in evidence. 14 Other witnesses gave evidence in the Crown case but it is not necessary to detail the content of that evidence. 15 The appellant also gave evidence. He made some correction to the content of his answers in the interview with police. He again gave an account of meeting the complainant, and of having consensual sexual intercourse in his office. 16 Character evidence was called on behalf of the appellant. 17 Given the nature of the grounds of appeal against conviction, it is unnecessary to record his evidence, or the character evidence, in detail. 18 At the conclusion of the appellant's evidence, defence counsel raised an issue concerning the pleading of the circumstance of aggravation upon which the Crown relied. This commenced with the trial judge asking counsel whether he was, or was not, making "an application". The transcript does not disclose any application. In short, the point was that the indictment alleged that the actual bodily harm was occasioned at the time of the offence - that is, at the time of the non-consensual sexual intercourse alleged - but that the evidence, so far as it went, suggested that the actual bodily harm (the marks on the complainant's back) had been caused "immediately before" sexual intercourse had taken place. 19 Reference to the circumstance of aggravation provided for in s 61J(2)(a) shows that the sub-paragraph creates a trichotomy between the occasioning of actual bodily harm - ie it may be immediately before, and at the time of, or immediately after the offence. 20 Counsel referred to the decision of this Court in Papadopoulos v R; Topcu v R [2007] NSWCCA 274 (see [48]-[50]). 21 In the course of the discussion, the Crown prosecutor said: "I wish to remain with this part of the indictment. If your Honour's against me then I would wish to amend the indictment to remove it. But I press that part of the indictment." (AB 662) 22 "That part of the indictment" was a reference to the pleading of the circumstance of aggravation. 23 After further discussion, her Honour said: "Moving to your next point of amending the indictment, how can I when he has already given evidence, how can I do that at this late stage of the trial?" (AB 670) 24 The Crown prosecutor responded by saying that her Honour could amend the indictment at any time up to the time when the jury retired to consider its verdict. Her Honour replied: "That is true, there's no doubt about that, but this is a legal point, a technical point that [defence counsel] has found on his client's behalf and what would you change it to? 'Immediately before'?" (AB 670) 25 The Crown prosecutor replied: "'Immediately before' or 'at the time of', just remembering, your Honour, [defence counsel] made the application at the end of the evidence so he has chosen the time. The difficulty now of amending the indictment at what your Honour perceives to be at a late time is the making of the accused, not the Crown." (AB 670) 26 During the course of the discussion her Honour made it plain that she would not permit the Crown to make an amendment to the indictment by adding, as an alternative to the allegation of the injury having been caused "at the time of", it having been caused "immediately before". The Crown prosecutor asked: "If your Honour takes it away, what will the technicality be … will your Honour have the jury give a verdict and this is what I see, I would simply, in light of your Honour's ruling, simply amend the indictment to remove the aggravating circumstance."

Her Honour said: "Well it is interesting. I was thinking about that, I hadn't thought of that but I would have thought that would be the way to proceed." (AB 689) 27 The Crown prosecutor again stated that if he were not given leave to amend the indictment as discussed, he would "simply move to remove the aggravating circumstance from the indictment". 28 Her Honour then raised s 61Q of the Crimes Act (see below) but was diverted by the Crown prosecutor, who said: "That is just about alternative verdicts, your Honour." 29 After further discussion about what the jury would be told, the following exchange between her Honour and defence counsel is recorded: "HER HONOUR: … Do you agree in principle, [defence counsel]?

HER HONOUR: And you agree it will be amend (sic), the indictment it (sic) to be amended.

[Defence Counsel] To remove the circumstances." (AB 691) 30 Her Honour then gave a short judgment. She opened by saying: "In relation to this matter there was an application at the end of the accused giving evidence that there was a defect in the indictment …

In my view it is the position the Crown charged the circumstance of aggravation, that is to say, did inflict actual bodily harm at the time of the commission of the offence. The evidence is, taking the Crown case at its highest, the actual bodily harm was inflicted prior to the act of the sexual intercourse …

It was then argued by the Crown that leave should be given to amend the indictment.

I did before the break ask [defence counsel] to reduce to writing the prejudice he said flowed to him. I have not received that document, but I accept his argument that he may have asked different questions in cross-examination or proceeded somewhat differently had the circumstances of aggravation been that it was immediately before as opposed to at the time of the commission of the offence. The Crown at any stage can amend the indictment but the court has to give leave and accordingly I am of the view that prejudice could very well be made out, or has been made out, or possible prejudice to run this defence case and accordingly I am of the view leave should be declined to amend the indictment pursuant to s 20 of the Criminal Procedure Act 1986 …

Accordingly, the application made by the defence is made good, however, as conceded by [defence counsel], this does not mean that the evidence about the injury is removed from the trial or any other matter is removed from the trial in terms of the examination or the cross-examination. What in fact is now unavailable to the Crown is the feature of aggravation, it having been specifically put in the indictment that it is confined to 'at the time of' rather than at any other time, namely, immediately before.

Also with the consent of [defence counsel] procedures will be adopted that there will not be a verdict taken in terms of the counts in the indictment but the Crown will be granted leave to remove the feature of aggravation from the indictment. In this case the alternative count was not placed into the indictment but certainly the Crown opened on the offence of sexual intercourse without consent pursuant to s 61Q of the Crimes Act and certainly there has been no doubt in terms of the progress of the trial from the very beginning that that offence was before the jury and, as I understand it, [defence counsel] agrees with that course …" 31 On the jury's return to the court, her Honour drew the jury's attention to the form of the indictment (of which the jury apparently had copies), and told them: "The law is that what needs to be proved is that this injury occurred precisely at the time intercourse was taking place - that is, penetration - when it was occurring, and not before or after. The evidence from [the complainant] … was to the effect that the injury occurred before actual sexual intercourse, although not long before. Therefore, the Crown cannot prove what it alleged in the indictment in that connection. This may seem to be a technical decision but the law at times, and almost inevitably, requires precision.

Now, ladies and gentlemen of the jury, shortly I am going to invite the Crown to amend that charge to delete the circumstance of aggravation. You will be aware that when the Crown opened the case he said to you there was the offence in the indictment and also he relied upon a statutory alternative count being the words that will be 'or after' and have always been 'on 10 March … to sexual intercourse.'.

Now, I am asking the Crown to do this and the decision I have made for him to do this, or for the Crown to do this … is not made on the basis of any finding regarding the reliability of any witness in this trial, including the complainant and the accused …

The indictment will be amended by the Crown and a verdict will now be required from you on the charge of sexual assault …

So, that is the position Ladies and Gentlemen of the jury. That is the count that is before you and remains before you and the offence that previously was before you involved the circumstance of aggravation is now not because that is going to be deleted from the indictment." (AB 703-704) 32 The evidence concluded, counsel addressed, and the trial judge summed up to the jury. The jury retired to consider its verdict at 9.30am on 28 January 2010. In response to a question by the jury, the judge gave additional direction. At 12.40pm on 29 January the jury returned with a verdict of guilty.

The grounds of appeal against conviction 33 Two grounds of appeal against conviction were pleaded. They are: "1. That there has been a fundamental failure of procedure going to the root of the criminal trial process in that the Court erred in law by delegating its power in s.21 of the Criminal Procedure Act 1986 (NSW) to the prosecutor to amend the indictment and by failing to make the appropriate orders under s21 and note of those orders pursuant to s22.

2. That there has been a failure to observe the requirements of the criminal trial process in a fundamental respect in that the trial judge erred in law by permitting an amendment of the indictment in circumstances where the accused was not re-arraigned and not put in charge of the jury in respect to an alleged offence pursuant to s 61 (I) (sic) of the Crimes Act (NSW) 1900."

Ground 1 34 The relevant statutory provisions with the respect to amendment of indictments are to be found in ss 20-22 of the Criminal Procedure Act 1986. Those provisions, so far as they are presently relevant, provide: "20(1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) … (3) … (4) An order under this section may be made either before trial or at any stage during the trial. (5) …

22(1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial. (2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form. (3) …" 35 The argument put on behalf of the appellant was based upon a fundamental misconception, which is also contained within ground 1. That misconception is that the amendment made by deleting the words pleading the circumstance of aggravation was made under s 21. That is not, and cannot be, so. 36 Section 20 and s 21 have different purposes. Although s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. The circumstances in which the leave may be granted are not confined by the section, although, obviously, the discretion must be exercised appropriately. It is worth noting here that s 20(2) expressly states that s 20 does not affect the powers of the court under s 21. One common circumstance in which amendment is allowed is where the evidence, as it emerges, is not entirely consistent with what is alleged in the indictment, for example, as to the date of an offence. 37 Section 21 is more complex. Its underpinning is an opinion held by the court that an indictment is defective. Where that opinion is held, and where the court holds the further opinion that the indictment can be amended without injustice, the court is empowered to take that course (sub-s (1)). The ensuing sub-sections contain consequential provisions. 38 Not surprisingly, the Criminal Procedure Act contains no definition of what constitutes a defective indictment. Section 16 lists matters (called in the heading "defects") that do not invalidate an indictment, and therefore give some guidance as to the kind of matters that might constitute defects. I have been unable to find in the authorities any attempt at judicial definition. There, are however, a number of cases in which indictments have been alleged, or found, to be defective. 39 In Mackay v The Queen [1977] HCA 22; 136 CLR 465 an indictment was held to be defective (although in a technical sense only) where two individuals were charged together on an indictment in circumstances where the Crown did not contend that a joint offence had been committed. Notwithstanding the technical defect, the Court upheld the conviction which followed. 40 In Doga v R [2009] NSWCCA 303; 198 A Crim R 349, McClellan CJ at CL (with the concurrence of Spigelman CJ and Grove J) said: "105 An indictment is defective at common law and liable to be quashed if objection is taken before trial, if it fails to identify an essential factual ingredient of an offence."

(That was not intended to be an exhaustive statement of what constitutes a defective indictment.) 41 In Park v R [2010] NSWCCA 151, McClellan CJ at CL said: "39 The obligation of the Crown when pleading an indictment is to identify the essential factual ingredients of the offence …"

There the complaint was not that essential facts had not been pleaded, but that an "essential legal ingredient" had not been pleaded. The Court rejected that contention. The indictment there in question was therefore not defective. 42 In Lodhi v R [2006] NSWCCA 121; 199 FLR 303 two defects were asserted. One was that the indictment was duplicitous. There is no doubt that duplicity in an indictment is a defect, and this Court proceeded on that basis. The indictment in that case, however, was held not to be duplicitous. 43 A second asserted defect, failure to state essential elements, was found to have affected the indictment, which was thereupon quashed: see the judgment of the Chief Justice at [57]-[94]. See also the additional observations of McClellan CJ at CL at [96]-[109]. 44 There is nothing defective about the indictment as originally pleaded in this case. The reason for the amendment was that, in the view of the trial judge, the evidence of the complainant did not support the circumstance of aggravation alleged of the offence incorporating the circumstance of aggravation. There was, on that issue, no evidence sufficient to found a conviction. An opinion that the Crown evidence is deficient as to an element of the offence charged is not an opinion that an indictment is defective. If, as her Honour said at the commencement of her judgment, counsel had asserted that there was a defect in the indictment, he was wrong. If her Honour accepted that, she was wrong. (In fairness to her Honour, she never made any finding, or expressed any opinion, to that effect.) She merely recorded the circumstances which led her to making the decision she did, and giving the judgment she did. 45 There were, in fact, in this case, two applications by the Crown for amendment under s 20. There was no application for amendment under s 21, and no conceivable basis for such an application. The first s 20 amendment was to add the words "immediately before, or" to the indictment. For the reasons given by the trial judge, that application was refused. That was because she accepted defence counsel's claim that, had the words been in the indictment initially, he might have cross-examined differently. I find it difficult to imagine how that might be so, but that issue is not before this Court. 46 The second application, following refusal of the first, was to delete the words pleading the circumstance of aggravation. That was consented to by defence counsel. That application was granted. That was an inevitable result of the acceptance by the judge that the evidence did not establish injury "at the time of" the offence, together with her rejection of the first application to amend. There is no basis to doubt the correctness of that decision. Indeed, it is difficult to see why the amendment was necessary. The offence as pleaded after amendment is an express statutory alternative to the offence originally pleaded. Section 61Q(1) of the Crimes Act provides: " (1) Question of aggravation If on the trial of a person for an offence under section 61J … the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61I … it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly." 47 The offence pleaded after amendment was an offence against s 61I. Indeed, that section number was endorsed upon the indictment when the amendment was made. 48 A further submission was made on behalf of the appellant, asserting that, in the circumstances in which the amendment was made, the trial judge "delegated" the court's responsibility to the prosecutor to make an order amending the indictment. Firstly, this misrepresents what occurred: the trial judge granted leave to the prosecutor to make the amendment, and did so consistently with s 20. Further, the submission was founded upon the false premise that leave to make the amendment was granted under s 21. For the reasons I have given, that was incorrect. 49 In either case, however, the submission is misconceived. There is no question of delegation. Whether the order is made under s 21, or leave is granted under s 20, there is nothing that requires the Court physically to make the amendment. It is the Crown's indictment, and the Crown who makes the amendment when leave is given (under s 20) or an order made (under s 21). 50 There is no substance in this ground of appeal.

Ground 2 51 By this ground the appellant complains that, when amendment was made, he was not re-arraigned on the amended charge. 52 Reference was made to the decision of the High Court in Maher v The Queen [1987] HCA 31; 163 CLR 221. However, in that case additional charges had been added to the indictment, which had not been committed to the jury. That is not the present case. 53 Reliance was placed upon the decision of this Court in Kamm v R [2007] NSWCCA 201. There, after the trial had commenced, it was found that the accused had been charged under a section of the Crimes Act which was not in force on the dates alleged in the indictment. The accused was therefore re-arraigned under the applicable section, and pleaded not guilty. There was no relevant substantive difference between the two sections. In that case also Maher v The Queen was invoked as authority for the proposition that the procedures were defective. This Court rejected that proposition. 54 In my opinion, this ground of appeal is decided also by reference to s 61Q of the Crimes Act. There was no new offence charged; the appellant ultimately went to the jury on, and only on, an offence that would have been available as an alternative count without amendment. It was the subject of express submission to the jury in the Crown's opening. If anything, the amendment to the indictment represented an excess of zeal, or of caution. 55 In my opinion this ground of appeal also must fail. 56 I would dismiss the appeal against conviction.

The application for leave to appeal against sentence 57 For offences against s 61I of the Crimes Act, a maximum penalty of imprisonment for 14 years is prescribed. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 7 years is prescribed. The latter represents the non-parole period for an offence in the middle of the range of objective seriousness of offences of its kind: s 54A. By s 54B, the court is to set the standard non-parole period unless it determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. 58 Payne DCJ sentenced the appellant to imprisonment for 7 years and 6 months with a non-parole period of 5 years. It is contended on his behalf that this sentence is manifestly excessive. 59 Before the court was a Victim Impact Statement in which the complainant said that she had experienced nightmares, depression and panic attacks, had lost trust in people, principally men, and did not like to be alone at night even in her own home. She had left Sydney and relocated to her parents' home in the country and she no longer felt safe in the city. She suffered mood swings, had feelings such as not having a bright and happy future, had anxiety and flashbacks on a regular basis, and was still undergoing counselling in order to assist her to cope with stressful situations and the depression she has. 60 Although the appellant had given evidence in the trial, he did not give further evidence in the sentencing proceedings. He wrote a letter to the presiding judge, in which he apologised for his conduct, to the complainant, as well as to others affected - his parents, his grandmother, his sister, his former wife, his daughter and his current girlfriend. 61 A Pre-Sentence Report was provided, but this contributed little information. 62 The appellant was born in Madras, India, in May 1973. He was almost 36 years of age at the time of the offence. He has no criminal record. He migrated to Australia in 2001, and married, soon after, the woman with whom he had migrated. They have a child now aged 4 or 5 years. The marriage broke down in 2007; nevertheless, his former wife gave character evidence for him in the trial. The appellant has established another relationship. 63 The appellant is well educated. He holds Bachelors' and Masters' degrees in Commerce, and a Master of Business Administration. He has had various forms of employment, most recently as acquisitions manager for a private equity company. He told the author of the Pre-Sentence Report that, at the time of his arrest, he was in the process of setting up his own business in the financial sector. 64 He also told the author that he believed that the sexual intercourse with the complainant was consensual, but acknowledged that he had caused her pain, and expressed his sorrow and shame for that. He said that he was willing to address his offending behaviour in order to minimise the risk of re-offending. 65 No complaint is made about the sentencing judge's findings of fact or the manner in which she dealt with relevant sentencing principles. 66 Her Honour recounted the facts and made particular reference to the course of email correspondence between the appellant and the complainant prior to their meeting. She referred to a telephone call made by the appellant to the complainant the day after the offence, and said that she considered it was not made out of concern for the complainant, as an attempt to cover up what had occurred. She referred to the appellant's use of a false name, and a false persona. She considered that all of this indicated that the appellant intended to do something disreputable. She noted, however, that the Crown case was not that the appellant set out, initially, to have sexual intercourse without consent, but rather to entice the complainant to have consensual sexual intercourse. It was when the complainant made it clear that she did not consent that the appellant determined to go ahead regardless. Her Honour accepted that at all times the appellant intended to take advantage of the complainant. 67 For the purposes of s 54B of the Sentencing Procedure Act her Honour found, contrary to express submissions made on behalf of the appellant, that the offence fell within the mid-range of objective gravity, but "towards the top of the lower band of the mid-range". 68 She noted that general deterrence must be a significant feature in the sentencing exercise. She accepted the Victim Impact Statement, and referred to the appellant's expressions of regret, and his educational and employment history. She noted that she had been informed that the appellant was serving his sentence on protection. (The appellant had been at liberty on bail until the date of conviction, but bail was then refused.) 69 Notwithstanding a finding that the appellant had not accepted responsibility for his actions, her Honour allowed "some small weight" for remorse, arising from the appellant's letter of apology. 70 Her Honour determined, for the purposes of s 54B, that there were reasons for the departure, downwards, from the standard non-parole period. These were the appellant's prior good character and his employment history. She found, within s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio there prescribed between the non-parole period and the head sentence. 71 She then proceeded to impose the sentence mentioned above. 72 In written submissions concerning the sentence, it was contended on behalf of the appellant that the offence was "an opportunistic crime of short duration" from which were absent features of aggravation. (The latter part of that submission can be accorded no weight, given that the appellant specifically went to the jury on the non-aggravated form of the offence.) 73 I do not accept, and I do not understand Payne DCJ to have accepted, that the offence was merely "opportunistic". The appellant had, in the week prior to meeting the complainant, frequently communicated with her in terms that applied pressure, and misrepresented himself as somebody who could significantly advance the career in modelling to which she aspired. On meeting her, he gave her alcohol (against her stated preference) and, when she was clearly affected by the alcohol, took her to a deserted office from which she had no escape. (The appellant said in his interview that access to the building, to the lift, and to his office was by electronic security key.) 74 In my opinion, the sentence imposed was well within the range available in the exercise of a sound sentencing discretion. 75 I would grant leave to appeal against sentence but dismiss the appeal. 76 The orders I propose are:

(iii) appeal against sentence dismissed. 77 BLANCH J: I agree with Simpson J. 78 GARLING J: I agree with Simpson J. **********

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