Rao v R - [2019] NSWCCA 290 - NSWCCA 2019 case summary — Zoe

NSWNSWCCA

Rao v R

[2019] NSWCCA 290

Court of Criminal Appeal (NSW)|2019-10-30|Before: Gleeson JA, Harrison J, Cavanagh J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-10-30

Before

Gleeson JA, Harrison J, Cavanagh J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

Date of Decision: 28 March 2019 Before: Hunt DCJ File Number(s): 2017/339066

[2]

Judgment

GLEESON JA: On 18 January 2019, the applicant, Mr Vaish Rao, was convicted in the District Court of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW) and two counts of indecent assault, contrary to s 61L of the Crimes Act. The offending was alleged to have occurred in the early hours of the morning when the complainant was asleep and was woken when she felt her vagina being penetrated by the applicant's fingers and then rubbing her vagina on the outside, and after the complainant moved the applicant's hand away, the applicant did it again.
On 28 March 2019, Hunt DCJ imposed an aggregate sentence of four years imprisonment, with an aggregate non-parole period of two years imprisonment commencing 28 March 2019. His Honour granted the applicant conditional bail pending appeal pursuant to s 22 of the Bail Act 2013 (NSW). The applicant entered bail on 29 March 2019 following a variation to the bail conditions.
The applicant seeks leave to appeal against his convictions only.
The sole ground of appeal is that "the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence".
This ground requires an assessment of the evidence; it does not involve "a question of law alone". Accordingly, the applicant requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). There should be a grant of leave as the ground is reasonably arguable. Mr Rao will be referred to as the appellant.

[5]

Complainant's evidence

The complainant gave evidence that she was born in India and came to Australia with her family in 2001. She had attended Wollongong University. In March 2015, she was working full-time and aged 22.
The complainant arrived at the apartment at about 7 pm on the Friday night. She described it as a double-storey, two-bedroom apartment. She said other close friends were already there - Mr Dengale and Ms Woods from Wollongong University and others from Macquarie University. The appellant was also already there. She said people were standing around chatting and drinking, but it was not "wild or anything", it was a "very calm" party. She said some guests played a game called "beer pong", but she did not. She estimated that she had about three or four drinks over the entire evening. She said she may have been tipsy, but she remembers the night; she was not drunk or slurring.
The complainant said that she planned to sleep over as Mr Shinde had previously told them that they were welcome to stay. Around midnight, the complainant went upstairs and found her friends, Ms Woods and Mr Dengale, in a bedroom sitting on the bed, talking and she joined them. Later, Mr Yadav came into the room as well. He was a friend of the appellant.
The complainant said that the four of them were in the bedroom and they decided to go to sleep. They were all lying on the bed, just straight, clothed and under the doonas. She described the positions of those on the bed as Mr Dengale, Ms Woods, herself and Mr Yadav - the men were on the outside and the women were on the inside. The complainant gave evidence that she chose this bed because Ms Woods and Mr Dengale were her "Wollongong people".
The complainant said she was "80% asleep", "like dosing off", when the appellant came into the room. He was standing at the end of the bed and she opened her eyes and closed them again. The next thing, he was pretty much next to her in between Ms Woods and her. She recognised the appellant as she had met him a few times previously. He was a friend, but was more a friend of Mr Shinde.
The complainant said that they went to sleep. She later awoke to the feeling of a "sharp pain inside of me". She turned around and saw the appellant behind her and his fingers were coming from behind. She was still clothed so she thought he must have moved her underwear to the side and gone inside. This conduct was the subject of count 1 - sexual intercourse without consent. The appellant then moved his fingers out but continued to rub in the area of her vagina. This conduct was the subject of count 2 - indecent assault.
The complainant turned around and pushed the appellant's hand backwards and away from her using her right hand. She then turned back around away from the appellant, saying she felt like she was "frozen". She was lying on her left side. The appellant moved his hand back and rubbed the complainant's vagina again on the outside. This conduct was the subject of count 3 - indecent assault. The complainant said she was "frozen" and thought "what is even happening right now?". She said the appellant then "went in again" meaning he put his fingers in her vagina. This conduct was the subject of count 4 - sexual intercourse without consent.
The complainant said that "Something in me just went, 'get up, get up, get up, get up'". She got up and went downstairs and out onto the balcony of the apartment. She thought this was "around 6 am", because her phone alarm sounded and she remembered turning it off. She said she felt an overwhelming need to lie down because her head "was like a snow globe that was shaken". She went back to the room and sat on the end of the bed and then lay on the bed to wait for everyone else to wake up. She lay with her head at the foot of the bed, where everyone's feet were, and her feet at the head of the bed. She could not remember who was still in the bed at that point, other than the appellant and Mr Yadav.
The complainant said that she waited until everyone woke up. She did not think she went back to sleep. She could not recall what time people woke up, but they all had to check out by 10 am. Some of them, including the complainant, cleaned up before checking out. The appellant was still there but she did not have any interaction with him.
After they checked out of the apartment, the group including the complainant, Mr Shinde and the appellant went to a café for breakfast. The complainant was there for a "little while", and then left and travelled home by train. She said she could not sit down on the train as she could still feel his fingers inside her, although obviously they were not. She could not remember the rest of the train ride. When she arrived home she went into her room and she lay on her bed. She said she knew his fingers were not inside her, but in her head they were.
The remainder of that day was very hazy for the complainant, but she felt it would be rude if she did not attend the second party. She said she felt as if she was on "autopilot", she dressed and went to the second party. She arrived at about 7 pm and the appellant was there. She did not talk to him. She left the party at 10.30 pm or 11 pm and went home.
The complainant did not report the matter to the police until June 2017. She said she contacted the NSW Rape Crisis Centre a few days after the assault and started counselling. Although there was a conflict in the evidence as to when it occurred, the complainant also reported the matter to Ms Woods. In her evidence-in-chief, the complainant said this occurred within the next few days of the second party, but she did not remember exactly when. She said it was by telephone; when she was in her bedroom inside a cupboard. She told Ms Woods that she had to tell her something and said, "You know the night of Ani's party, the first night we were in the bed? Do you remember?" and Ms Woods said, "Yes", and she said, "That morning I woke up with Vash. I woke up with Vash inside of me because he put his fingers there". Ms Woods replied, "Oh, my God" and asked, "Are you okay?".
The complainant said that she later told a few of her girlfriends and a few of the appellant's girlfriends and also told Mr Shinde and Mr Dengale. She recalled telling Mr Shinde at a café near Crossroads, but could not remember the date. She said that she recalled telling Mr Dengale in Macarthur Square carpark.
The complainant said she had Facebook contact with the appellant in April 2015 and again in May 2015. In April 2015, she arranged to meet the appellant at a restaurant in the Queen Victoria Building in Sydney. (Other evidence established that this occurred on 29 April 2015.) The complainant said her motivation for organising the meeting was to confront the appellant. By this time, she had spoken with the Rape Crisis Centre and told them what had happened, that she was having panic attacks and could not sleep. The complainant said she confronted the appellant at that meeting and referred to her waking up with his fingers inside of her and "that was not okay". He responded "Oh my God" and when the complainant said that she did not consent, the appellant kept saying, "Oh my God. I'm so sorry. I'm so sorry".
In May 2015, the appellant messaged the complainant via Facebook and asked how she was going and she replied that she was good. The complainant had no further contact with the appellant after that time.
The complainant explained that between May 2015 and June 2017 she was attending counselling, and she came to learn the terms "sexual assault" and "illegal" and what her options were. She made a statement to police on 29 June 2017 and provided copies of the Facebook messages.

[6]

Cross-examination

In cross-examination, after confirming that her police statement was accurate, correct and true to the best of her ability, the complainant said that she did not know that waking up with someone's fingers inside her was a sexual assault and illegal until she spoke to her counsellor. She agreed that she was aged 22 at the time of the incident, had graduated from university and had a full-time job, and said she did not realise what the conduct was, saying it "wasn't called that".
When challenged in cross-examination, the complainant denied the propositions that she was never sexually assaulted by the appellant and that she was making up the allegations. She said she did not speak to the appellant about it at the time because she was frozen, but she had gestured to him to stop. She said that she knew what he was doing was wrong, that she did not want it to continue, and that she moved his hand away. She accepted that she did not try to speak. She said she could not speak, she was frozen.
The complainant agreed that she was lying on her side in the bed and when asked if she was certain the appellant was behind her, she said "one hundred per cent". When cross-examined about her clothing, the complainant agreed she was fully clothed and her blue dress came down past her knees. She said she did not need to see if her dress had been lifted because she could feel his hands. She said, "In order to reach inside me, he would have had to lift my dress". She did not check her dress as she could not see it.
The complainant could not recall whether Mr Dengale was still in the bed when she got up. She did not look to see who was in the bed because "I needed to get out". She agreed that she did not know who was in the bedroom after returning from downstairs and being out on the balcony. She said she just needed to lie down. She agreed there were couches downstairs and said that people were sleeping on them. She could not remember who. She disagreed that she spoke to Mr Dengale when she was downstairs, and could not recall speaking to anyone. When challenged as to why she did not report the matter to Mr Dengale, she said it was a difficult thing to say to someone and "that someone is not your ex-boyfriend". She said telling Mr Dengale did not cross her mind because she was "frozen".
The complainant was questioned about lighting in the bedroom. She said that when she first entered the room the light was on and she thought it was still on when they were going to sleep. She did not recall telling police that the light was off. She said it was not a detail she was thinking about when she made her statement.
The complainant did not know whether the light was on or off when the incident occurred, but said it was a "perfectly lit daylight room". She said her alarms went off "about 6 am-ish" and the sun was up. When put to the complainant that the sun did not come up on 6 and 7 March 2015 until 6.42 am and that it was dark before 6 am, the complainant said she thought she may have been disorientated with her time and her alarms were later than that. She said she assumed the alarm went off at 6 am because that is usually around the time she woke up.
The complainant agreed that in her police statement, she had said that the appellant had climbed onto the bed and slid under the doona cover from the top. She said she recalled seeing him do this. Later, she said she felt him climb in from the top of the bed. She agreed that in her police statement she said that at the time the conduct occurred, "The light was off in the room, but the room was bright because the sun was coming up and the room was lit". She also agreed that in her police statement she said that she jumped up and got out of bed and went downstairs and her phone alarm went off and the time was 6 am. She said that when she was on the balcony, the sun was already up, it was daylight. She agreed she may have remained on the balcony until 6.42 am, and that maybe her mind was frozen on the balcony.
The complainant gave evidence that she had been to counselling and saw lawyers at the Women's Legal Service and another Legal Aid service in the last four years. She did this before going to the police. She agreed that she told the counsellor that she was concerned that she did not have any physical evidence, meaning that she went home instead of going to hospital. She said her mother washed the dress that she was wearing on the night of the party. She said she could not remember, but it was possible that she told a counsellor she wanted to burn the dress.
The complainant said that she spoke to the police on another occasion, before June 2017, and registered the appellant's name but was not ready to make a statement and the police officer told her to take her time and do it when she was ready. She agreed she had not undertaken a medical examination and did not produce her dress for analysis and that the case depended upon her word about what happened that night.
The complainant agreed that she went to breakfast on the Saturday morning with the appellant and others. She said she was just frozen and operating on autopilot. She agreed she chose to go to the second party on the Saturday night. She did not speak to anyone at that party about what had happened. She saw the appellant at the second party. When asked if she interacted with him she said, "I don't remember, but I don't think so". When shown a group photograph, the complainant accepted that it was from the party on the second night. She agreed the appellant was in the photo in the foreground, crouched down and she was standing behind him. (Ex 1) She was questioned about whether she could see her arm was across the appellant's shoulder. The complainant responded, "Are you saying that's my hand" and when it was put to her that the hand on the appellant's shoulder was "yours", the complainant answered, "I don't, I guess. Well, logically that makes sense because there is no one else there, yes". She disagreed that it was nonsense that she had actively avoided the appellant at the second party. She said it was a group photo, that she did not remember putting her hand there, but accepted that it was her hand and the appellant's shoulder in the photo.
The complainant did not recall attending a 21st birthday party for Mr Dylan Bloom on 29 March 2015 at which she and the appellant were shown in a group photo. (MFI 4)
The complainant agreed that the appellant had invited her to his birthday party (in April 2015) and said she had responded, "I can't go, but let's have a meal together". She denied using this as a reason to deceive the appellant to lure him to meet her. She said she wanted to confront him. She agreed they had dinner, not lunch, in April 2015.
When challenged as to the dinner conversation in April 2015, the complainant denied that she said to the appellant "I felt uncomfortable at Ani's night when your arm was on me" and he said, "What, when?" and she replied, "When we were sleeping", and he said, "Oh, I'm sorry". She maintained her evidence that she told the appellant he had his fingers inside her. She was adamant that the appellant said to her, "I hope we can still be friends?", and when the appellant said, "I'm sorry", in her mind he was admitting to it. The complainant agreed that the dinner lasted for about two-and-a-half hours. She said it was a calm meeting, but she did confront the appellant. She agreed that her Facebook message response "Lucky" to the appellant's message regarding making his train after the dinner was not very confrontational.
When questioned as to the positions of the people on the bed, the complainant maintained her evidence that the appellant got into bed between her and Ms Woods. She denied that the appellant was in between her and Mr Yadav. She said she was lying on her left, Mr Yadav was in front of her, and the appellant was behind her. She said that when she pushed the appellant's arm away, it was a distance of about 8 to 10 inches. She thought pushing his hand away would be enough to say, "Don't do it again". She said that when she turned to look at him, his eyes were shut.
The complainant was shown a record of Facebook messages between her and the appellant. A message from the complainant to the appellant on 10 April 2014 requested him to complete a marketing survey. The next message from the appellant to the complainant on 15 April 2015 asked if she was coming to his party to which she responded, "Nope, I won't be there. Have fun though.". The appellant responded asking, "Why?", and the complainant replied, "Just busy tonight, let's do lunch later". There were further messages between the complainant and the appellant in April 2015 making plans to catch up. The complainant said that she had asked the appellant about his assignments as she was just being nice and wanted to stay in contact with him so that she could confront him.
On about 25 April 2015, the appellant sent a Facebook message to the complainant, "Did u enjoy grime last night??", referring to a DJ who performed at the Metro venue in Sydney. The complainant replied, "Yeah, it was good". She agreed that she went to the performance but did not remember seeing the appellant there. When shown a black and white photograph, the complainant accepted that she went to the concert and the appellant was there as well.
Questioned as to her alcohol consumption at the Friday night party, the complainant agreed that she told police she had no more than three or four drinks. She said she was not a big drinker. She agreed she probably had one "shot" to celebrate Ani's birthday, but could not remember it. She said she did not drink wine as she does not like it. She did not remember having a wine as well as a shot at the Friday night party. She did not remember drinking beer during the game of "beer pong". She agreed she had three or four drinks which were Vodka mixed with something. She agreed that on previous occasions when she had seven or eight alcoholic drinks, this had made her drunk. She said that when she was drunk she was unsteady on her feet and her perceptions were altered.
Questioned as to why she returned to the same bedroom, the complainant said she did not go into the other bedroom because it was full and she wanted to stay with her friends, Ms Woods and Mr Dengale. She adhered to her evidence that she lay on the bed with her feet where the other people's heads were with her head at their feet. She agreed she lay in the bed where the appellant was sleeping. She said she was not sure whether the appellant was still in the bed; she could only recall walking in, sitting and lying down. Her head was spinning and she just wanted to lie down. She could not remember how long she was in the bed because she was frozen and lost time. She said she was lightly sleeping.

[7]

Ms Woods

Ms Woods gave evidence that she was a university friend of the complainant and they had been friends for about seven years. She arrived at the apartment on the Friday night at about 6.30 pm or 7 pm and the complainant was already at the party. She said there were about 15 other people present. She had about three to five mixed drinks. She had to get up early the next day to catch a train to a first aid course and she did not feel like she was drunk, but there was a chance she may have been a bit tipsy.
Ms Woods said that Mr Shinde had arranged for everyone to sleep over at the apartment on the Friday night so that nobody needed to worry about getting home. She went to bed around midnight in one of the three bedrooms. She did not remember anyone else being in the room, but then Mr Yadav and Mr Dengale came in to go to sleep as well. She said there were not enough beds for everyone and they were all under the covers and all fully clothed.
Ms Woods said that at some point the complainant came into the room and lay down on the bed next to her. She described the positions of the people in the bed "from the closest to the door to the window or the wall, I can't remember which one it was, it went Prem, myself, [the complainant] and Samarth".
Ms Woods said that at some point in the evening, the appellant came into the room and she heard a lot of noise which she thought sounded like he was drunk as he was making grunting noises, falling around and running into the wall. She was sure that the person was the appellant and recalled Mr Dengale becoming irritated at the disturbance and telling him to "Fuck off". At the time, the lights in the room were off. The appellant did not leave the room.
Ms Woods said that the appellant got into the bed between the complainant and herself, but could not recall how that occurred. She said Mr Dengale and Mr Yadav were still on the outside. She said at some point she went to sleep and woke up early in the morning, at about 6.30 am. She had set her alarm. She grabbed her things and left. She did not say goodbye to anyone before she left because it was early in the morning and she did not notice anyone else awake at the time. She saw that Mr Dengale was still on the bed but that was all she noticed.
Ms Woods spoke to the complainant about the party, not immediately afterwards, but quite some time after. She could not give a date or a month, but said it was later in 2016. She was not sure about the year, and agreed that it was more an estimate. Her best recollection was that the conversation with the complainant was in 2016.
Ms Woods said that the complainant had called her and said they needed to talk. The complainant drove to Ms Woods' house and they sat in the car outside her house. The complainant told her about the night and said that she was asleep and woke up to the appellant touching her vagina. Ms Woods remembered the complainant using the words "touching her vagina". The complainant was upset and crying and she comforted her. Ms Woods did not have a memory of whether the complainant went into detail about what she alleged took place in the bed. Ms Woods said she had also spoken to the complainant a few times over the phone, as well as face-to-face, where the complainant had been quite upset about the matter. Ms Woods observed that for a while the complainant felt uncomfortable when people touched her or hugged her.
In cross-examination, Ms Woods said, "I cannot remember when, but some time late last year, 2016, I got a phone call from [the complainant] asking whether she could come around and talk to me".
Ms Woods agreed that in her police statement she said, "She did not elaborate in any detail about what had happened except to tell me that he had touched her on the vagina". Ms Woods could not recall the complainant giving any further elaboration on that.

[8]

Mr Dengale

Mr Dengale gave evidence that he was friends with the complainant and Ms Woods and for a brief period had been in a relationship with the complainant. He was also a friend of the appellant. He was a good friend of Mr Shinde. He said he arrived at the birthday party at 10.30 pm on the Friday night having finished work at 10 pm and caught a train from Alexandria. When he arrived, the complainant, Ms Woods and the appellant were already there and he spoke to them throughout the night. He said he had a few beers and maybe one or two shots, but did not drink too much because he had cricket the next day. He was tipsy, but not too affected.
Mr Dengale stayed overnight in one of the three bedrooms. He said he slept in the bed for only a few moments because at one stage there were five people on the bed. He was one of the first two people on the bed and after it became crowded he slept on the floor, which he said was not too good so he went downstairs and slept on the couch. He described the five people positioned on the bed in the following order: him on the side, then Ms Woods, the complainant, the appellant, and Mr Yadav.
Mr Dengale said that when the five people were on the bed, they were on the top of it, not underneath the covers. He said everybody was clothed. He said he woke up at 6 am, as he had to leave at 6.30 am for cricket and he had set his alarm for 6 am. When he awoke he was downstairs on the two-seater couch. He saw the complainant on one of the chairs looking at her phone. He said they had a short conversation during which he said to her, "You didn't, you didn't go to sleep upstairs?" and she replied, "No, I couldn't fall asleep".
Mr Dengale said that about a year after the party, or 13 or 14 months afterwards, he spoke to the complainant. She said to him, "While I was asleep I felt something and it was Vaish's hands inside my vagina". He said the complainant used the words "inside me". He replied, "Are you sure that's what happened?" and she said, "Yes", and started crying. This conversation took place in the parking area at Macarthur Square.
Mr Dengale was not cross-examined.

[12]

Defence case

The appellant gave evidence and was cross-examined. He said that he arrived at the party at approximately 6.30 pm with the intention of staying the night. He estimated that he consumed about five to six alcoholic drinks and was tipsy, but nowhere near drunk. He said he stopped drinking around 11 pm.
The appellant spoke to the complainant at the party. He saw her drink beer and a glass of wine. He also thought she was drinking some clear alcohol. He said he saw her with a glass in hand the whole night and that she seemed friendly and sociable, nothing out of the ordinary.
The appellant said that he slept in one of the three upstairs bedrooms. When he entered the room, Mr Yadav, the complainant, Ms Woods and Mr Dengale were laying on the bed in that order. He said he got onto the bed, but not under the covers. He said he lay down next to Mr Yadav, with the complainant next to him and Mr Yadav on the outside. He said he went to sleep about 12.30 am.
The appellant could not recall speaking to anyone prior to climbing onto the bed. He thought he woke up between 8 am and 8.30 am the next morning having slept through the night. When he woke up, Mr Yadav was lying in the bed next to him and he could not recall anyone else in the bed, or in the room. He clarified that by "in the bed" he meant on top of the bed.
The appellant said he got up and went downstairs to help clean up before the 10 am checkout. He said the complainant was also downstairs helping to clean. He said he went to breakfast with the group, including the complainant.
The appellant denied inserting his finger or fingers into the complainant's vagina, or touching her vagina on that night. He said he first heard the allegation on his arrest.
The appellant said that he saw the complainant at the second party for Mr Shinde on the Saturday night. When shown the group photo, he said it was the complainant's arm on his shoulder.
The appellant next saw the complainant at a 21st birthday party for Mr Bloom. He could not recall interacting with her there.
The appellant contacted the complainant through Facebook (on 15 April 2015) to see if she was coming to his 21st birthday party, but the complainant did not attend as she said she was too busy and offered to have lunch with him later. Instead they met for dinner in April 2015.
According to the appellant, at the April dinner the complainant said: "I felt uncomfortable at Ani's night when your arm was on me", he replied, "What? When?", and the complainant said, "When we were sleeping", and he replied "Oh, I'm sorry".
The appellant gave evidence that he had no knowledge of having his hand or arm on the complainant when he was sleeping; he explained that he said "sorry" to the complainant "out of courtesy to her. It was a, it was a reflex". He denied saying to the complainant words to the effect, "I hope we can still be friends". The appellant said that after the April dinner, he messaged the complainant to tell her he had made the train in time and she replied, "Lucky".
The appellant gave evidence that he had no criminal convictions.

[16]

Whether jury's verdict unreasonable and cannot be supported by the evidence

The test to be applied when dealing with this ground is that stated by the High Court in M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson, Toohey JJ), 508 (Gaudron J); [1994] HCA 63. This test has been reiterated in subsequent cases, including MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); and Fennell v The Queen [2019] HCA 37 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
The question is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering this question the Court must give full weight to the jury's advantage in having seen and heard the witnesses give their evidence: M at 493. However, as the joint judgment in M states at 494: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside the verdict based upon that evidence.
Thus two competing considerations arise: one is the importance of the constitutional role of the jury; the other is the duty of an appellate court to make its own independent assessment as to the sufficiency and quality of the evidence: M at 492-4; Baden-Clay at [65]-[66]; Fennell at [81]; Stanford v R [2018] NSWCCA 249 at [52] (Simpson AJA, Walton and Wilson JJ agreeing).
As the High Court recently said in Fennell at [81]: … the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. … (Citations omitted.)

[19]

(2) The unlikelihood that the complainant would have returned to the same bed as the appellant

The appellant submitted that the complainant's evidence on this issue was not credible as the complainant had other options and would not have returned to the same bed in which her assailant was sleeping if the offending had occurred.
The complainant's explanation for returning to the same bed was that she needed to lie down because her head was spinning. On her evidence, she lay in the opposite direction to the other people in the bed and "just waited until everybody woke up". Whilst the apartment was unfamiliar to the complainant, the room to which she returned was more familiar to her; it was the room that her friends were in. That the complainant could not remember if her friends were still there when she went back to the room was explicable given her state of mind, which she described as "like a snow globe that was shaken".
As to the suggestion in cross-examination that the complainant could have laid down on the couches downstairs, the complainant explained that there were people sleeping on them.
As to the suggestion in cross-examination that the complainant could have gone to another bedroom, the complainant explained that there were other people in the other bedroom (of which she was aware) as she had seen them earlier on.
The implicit premise of the appellant's submission, that a victim of sexual assault is not supposed to return to the same bed as his or her assailant under any circumstances, should be rejected. It reflects the kind of stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave, which Button J cautioned against in Khamis v R; Hussain v R [2018] NSWCCA 131 at [533]. The significance of the complainant returning to the same bed and the credibility of her explanation of why she did so was, quintessentially, a matter for the jury: MFA v The Queen at [48].
I do not consider that the jury must have entertained a doubt about the complainant's explanation for returning to the same bed. It was open to the jury to accept the complainant's evidence as to why she did so.

[22]

The light in the room and the time the complainant left the room

The complainant's evidence on these matters is referred to at [16], [30] and [31] above. At trial, the appellant challenged the complainant's evidence relying upon an internet search which showed that the time of sunrise on the morning of the offences was 6.47 am (Exhibit 4). It is not clear whether Exhibit 4 showed the time the sun first appeared on the horizon, or was fully visible, and how long it would take for the sun to rise.
The appellant submitted that the complainant's evidence was unreliable because when confronted in cross-examination with Exhibit 4 she shifted her position and she said that she may have been disoriented with her time and that her alarms may have been set for later than 6 am. The difference between the complainant's evidence that when the incident occurred it was a "perfectly lit daylight room" and the time of sunrise shown in Ex 4, should have caused the jury to approach the complainant's evidence with a degree of caution.
One possibility, to which the Crown points, is that the jury accepted that the complainant was wrong about her alarms going off at 6 am and that her statement to the police made two years after the alleged offending was based on an assumption as to when her alarms usually went off and was not to be taken as a statement of precision. In support of this, the complainant's evidence at trial before Ex 4 was put to her, was more qualified: she said that her alarm was set for "about 6am-ish" and when she awoke with the pain of the appellant's fingers in her vagina that this was "around" 6 am.
There also needs to be considered the evidence of Ms Woods and Mr Dengale, referred to above at [47] and [54]. According to Ms Woods, she noticed Mr Dengale was still in the bed at about 6.30 am when she arose to leave, whereas he said that he had set his alarm for 6 am and that he was downstairs when he awoke. Although the complainant had no memory of speaking with Mr Dengale when she went downstairs after the incident, the timing of this conversation, according to Mr Dengale, was broadly consistent with the complainant's evidence that she was out of bed and downstairs at about 6 am. There is of course the possibility that Mr Dengale's memory as to when his alarm went off was open to doubt nearly four years after the event, particularly given that Ms Woods did not notice Mr Dengale downstairs when she left at about 6.30 am.
On the complainant's evidence, she was in a degree of shock following the incident. It is entirely plausible that she was mistaken as to the time she went downstairs and had forgotten about the conversation with Mr Dengale, assuming it occurred, when giving her police statement. Even assuming that the timing of Mr Dengale's alarm was 6 am and that Ms Woods was mistaken that he was still in the bed when she rose at about 6.30 am, it was open to the jury to treat the absence of an account by the complainant of a conversation with Mr Dengale as a consequence of the trauma of the incident and the passage of time, and accept that the complainant was wrong about it being daylight when she first awoke, but that it became daylight while she was on the balcony downstairs.
Plainly the inconsistencies in the evidence as to light in the room and the time the complainant left it were matters for the jury to take into account in assessing the complainant's credibility and reliability. I do not consider that the jury must have entertained a doubt about the complainant's evidence that the alleged offending occurred.

[27]

(5) The asserted inadequacy of the explanation for the delay in complaint

Whilst there was a delay in the complainant formally reporting the matter to the police in June 2017, on the complainant's evidence she spoke to the Rape Crisis Centre within days of the offence as she was having panic attacks and could not sleep. Although there was no evidence to corroborate the complainant about this, it was open to the jury to accept that her complaint to the Rape Crisis Centre was made swiftly, within days of the alleged offending.
As to the delay in reporting the matter to the police, which the complainant described as "a big decision", the complainant explained that the matters affecting that decision included the need to make sure it was what she wanted to do, and her concerns that she did not have any physical evidence because she had gone home instead of going to hospital, and that the dress she had been wearing had been washed by her mother. She also referred to the recommendation by Victims' Services that if she was unsure about whether to go to the police or not then she should get advice from Legal Aid, which she did. The complainant's explanation for the delay in reporting to the police was rational and capable of acceptance by the jury.
As to the credibility of the complainant's evidence that she did not realise the enormity of what had occurred and that it was open to her to involve the police until she had spoken to the counsellor from the Rape Crisis Centre a few days after the assault had occurred, the appellant submitted that it was implausible that a young female adult, university-educated in Australia, would not have immediately realised that the acts amounted to the crime of sexual assault.
That submission should be rejected. It involves an unwarranted assumption that all victims of sexual assault, or at least those with a university education, have an appreciation of the criminal law definition of what constitutes sexual assault, relevantly, that it extends much beyond that of the original common law offences of rape and attempted rape, which were abolished in 1981 by s 63 of the Crimes Act as substituted by the Crimes (Sexual Assault) Amendment Act 1981 (NSW).
The important point is that the complainant was never in any doubt that what occurred was "wrong". On her evidence, she indicated her lack of consent by her gesture in pushing the appellant's hand away, and when it happened again, by leaving the bed. It was not implausible that she would not necessarily have realised that the offending conduct amounted to the crime of sexual assault before speaking to the Rape Crisis Centre.
The appellant also submitted that Mr Dengale, the complainant's former boyfriend, was an obvious person to complain to, but the complainant had not done so. The complainant's explanation for the absence of immediate complaint to Mr Dengale was credible; she said it is "a difficult thing to say" to anyone, let alone "your ex-boyfriend". It was open to the jury to accept this evidence.

[31]

Mr Shinde's second 21st birthday party on the Saturday night

There was no direct challenge to the complainant's evidence that she did not talk to the appellant at the second party held on 7 March 2015. It was open to the jury to accept her evidence that she was functioning "on auto-pilot" that day and that she went to the second party because she felt it was rude not to, as Mr Shinde was a close friend.
As to the group photograph, the complainant's reaction in cross-examination of seeking clarification that it was being put to her that it was her hand on the appellant's shoulder is understandable. It is not immediately clear whose hand is on the appellant's shoulder. In the photo, the complainant is standing behind but at a slight angle to the appellant. While it does not immediately appear that it can be her hand on the appellant's shoulder, she conceded that it must be. My own view is that the photo is equivocal, and it is possible that the hand on the appellant's back is that of the male person who can be seen crouching next to him. Nonetheless, accepting the complainant's acknowledgment that it is her hand, nothing in the photograph suggests it was an affectionate kind of gesture inconsistent with the complainant's evidence that it was a group photograph and if her arm was on his shoulder that was just what happened.
The appellant submitted that when put under pressure during cross-examination about what the group photograph showed, the complainant took refuge in a diversion by suggesting that people outside the court were laughing and this lacked credibility, given the observation by the trial judge that he had a clear view and could not see anything. At the time the door to the courtroom which contained a window was closed. The jury had an advantage over this Court of seeing the complainant give her evidence, including what the appellant describes as a diversion when put under pressure. I am not persuaded that the jury must have entertained a doubt that the complainant's response to questions concerning the group photograph reflected on her credibility.
It was open to the jury to accept the complainant's explanation for attending the second party, and that the group photograph did not indicate a friendly relationship with the appellant that was inconsistent with the complainant's evidence.

[37]

Other matters supporting the complainant's credibility

The Crown drew attention to a number of matters that supported the credibility of the complainant's account. Each of these should be accepted.
First, the complainant's account was consistent with her later complaint to Ms Woods, Mr Shinde and Mr Dengale. Whilst Ms Woods said in her police statement that the complainant told her "he had touched her on the vagina", she gave evidence that the complainant told her, "that whilst she was asleep she woke up to Vaish touching her vagina". When pressed, Ms Woods said that she remembered the complainant using the words "touching her vagina". That she did not recall if the complainant went into greater detail and referred to penetration is not inconsistent with the complainant having done so in their conversation. Mr Shinde gave evidence of the complainant telling him that on the night of the birthday party "when she woke up, she had Vaish's fingers inside her". Mr Dengale gave evidence of the complainant telling him, "While I was asleep I felt something and it was Vaish's hands inside … me".
Second, both Ms Woods and Mr Dengale gave evidence that the complainant was upset when she mentioned the complaint to them. Ms Woods described the complainant as "crying and quite upset" and that she comforted her. Mr Dengale said that the complainant was crying. Whilst Mr Shinde did not say that the complainant was upset when she disclosed what had occurred, he said that she required comfort. The evidence of the complainant's manner at the point of disclosure was consistent with her complaint.
Third, the evidence of Mr Shinde that the complainant was very quiet on the Saturday morning and left the breakfast at the café after only about 10 minutes was consistent with the complainant's evidence of her state of mind after the alleged offending.
Fourth, on the complainant's evidence she reported the matter to the Rape Crisis Centre within a few days of the alleged offending. Although the absence of evidence to corroborate such complaint should have caused the jury to approach this evidence with a degree of caution, the jury had an advantage which this Court does not share of seeing the complainant give her evidence. For my part, I do not consider that the jury must have entertained a doubt about the credibility of this evidence.
Fifth, the complainant gave evidence of her state of mind on the train on the morning after the offences which was credible as to her real memory of what had occurred: … So I went to go and sit down and I couldn't because I could feel his fingers and I know it sounds odd, because his fingers were obviously not inside me at that time. But I could feel his fingers and then I got up and I could feel his fingers, and I, I, I didn't really know what to do, but I could feel his fingers. I don't remember the rest of the train ride. The next memory I have is going home and going into my room. That is an act that I've done a thousand times. Go into my room and lie down on my bed. I went into my room, I lie down on my bed and his fingers were inside me. Again, I know that his fingers were not inside me but in my head his fingers were inside me.

[39]

Commencement date of sentence

As indicated above, the appellant was sentenced on 28 March 2019, but was immediately granted bail pending the outcome of his appeal. In view of the dismissal of his appeal, he must now serve the sentence imposed on him by the District Court. Section 18(2) of the Criminal Appeal Act provides that, "[t]he time during which an appellant is at liberty on bail (pending determination of his or her appeal) does not count as part of any term of imprisonment under the appellant's sentence".
Section 28A of the Criminal Appeal Act provides, relevantly: (1) This section applies if, under section 18 or 25A, any period does not count as part of any term of imprisonment under an appellant's sentence. (2) The court may make any order that it thinks fit to give effect to section 18 or 25A (including an order specifying the date of the commencement or re-commencement of the sentence). (3) If the court does not make such an order, the sentence commences or re-commences on the appropriate date required for the operation of section 18 or 25A. …
The effect of s 28A is to confer power on the Court, where the appellant has been on bail pending the outcome of his or her appeal, to adjust the commencement date of the sentence when dismissing an appeal. This provision was introduced in 2004 by the Crimes (Administration of Sentences) Amendment Act 2004 (NSW), s 4 and Sch 3.2[1] in response to a gap in the sentencing legislation identified by Handley JA (Dowd J and Greg James J agreeing) in R v Hall [2004] NSWCCA 127 at [34]-[47]. It was held in R v Hall at [28], applying Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22, that unless the Court had a statutory power exercisable when dismissing an appeal to vary the commencement date of the sentence imposed at first instance, that sentence continued to run while the applicant was on bail.
In this case the appellant must be resentenced to allow for the change in the commencement date of his sentence pursuant to s 28A of the Criminal Appeal Act.
I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal against conviction on counts 1, 2, 3 and 4. 3. Vary the sentence imposed in the District Court so that it provides: 1. Sentence the offender to an aggregate sentence of a term of imprisonment for 4 years, comprising a non-parole period of 2 years to commence from the date of these orders or such later date on which the appellant is first taken into custody, together with a balance of a term of 2 years expiring 4 years after the date of these orders or 4 years from such later date on which the appellant is first taken into custody; 2. Note that the earliest day on which the offender will become eligible to be released on parole is 8 December 2021 or the date two years from the date the offender is taken into custody, if that be not the date of these orders.
HARRISON J: I have had the benefit of the detailed judgment of Gleeson JA circulated in draft. Having considered the evidence and reviewed all of the evidence in the trial, I consider that his Honour's conclusions are correct. The jury were entitled to accept the complainant's evidence notwithstanding the matters to which the appellant has drawn this Court's attention. In my opinion, none of those matters, either alone or in combination, leads me to conclude that the jury must have entertained a reasonable doubt about his guilt. I agree with the orders that Gleeson JA proposes.
CAVANAGH J: I have carried out my own independent assessment of the evidence and agree with the judgment of Gleeson JA and his Honour's reasons. I would only add briefly that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. There was plainly a conflict in the evidence but the jury must be taken to have accepted the complainant's evidence. In my view, it was open to the jury to have done so. On one view, it might be thought that the complainant's post-incident conduct was inconsistent with the occurrence of that which she maintained but as emphasised by Gleeson JA this Court has cautioned against placing too much weight on how victims of sexual assault might be expected to behave.
Further, contrary to the applicant's submissions, it is not implausible that the applicant assaulted the complainant in the manner suggested having regard to the particular detail of that assault and the fact that the other persons in the bed were asleep and having regard to the applicant's own positioning of himself next to the complainant in the bed.
In considering the post-incident events in terms of implausibility, it is necessary to also have regard to any implausibility in the applicant's evidence. The complainant said that she was too busy to attend the applicant's 21st but suggested a lunch for reasons which were unexplored other than the complainant said she wanted to confront the applicant (although it ultimately became a dinner). No other explanation was proffered as to why the complainant would have been suggesting a one-on-one lunch with the applicant. The applicant said that the complainant had raised with him that she felt uncomfortable that night when his arm was on her. He said he did not have any knowledge of that whilst they were sleeping but he apologised as a matter of courtesy saying it was a reflex, meaning the apology.
The complainant's version, that is, that she said she was too busy to go to his 21st, but then suggested a lunch for the purposes of confronting him is not implausible. Indeed, it may be that the applicant's evidence that they did have dinner at the complainant's suggestion but she merely raised a concern about the presence of his arm on her at some unspecified point, might be viewed as somewhat implausible.
This is a matter in which the jury had the advantage of seeing and hearing the witnesses and the jury must be taken to have accepted the complainant's evidence.
In the circumstances, I would also dismiss the appeal.