Regina v Khouzame & Saliba

R D Ellis (Crown) COUNSEL : R Burgess (Khouzame) C Bruce (Saliba) S E O'Connor (Crown) SOLICITORS : Elias Gates & Assocs (Khouzame) C Bruce (T Murphy) CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Duplicity; sexual offences; whether necessary to charge each act of sexual intercourse Crimes Act, 1900 - s61J(1), s61H(1) ACTS CITED : Workers Rehabilitation and Compensation Act, 1986 (SA) Children (Criminal Proceedings) Act, 1987 R v Locchi (1991) 22 NSWLR 309 S v The Queen (1989) 168 CLR 266 Andrew Lapthorne (1989) 40 A Crim R 142 Walsh v Tattersall (1996) 188 CLR 77 R v Giam [1999] NSWCCA 53 Mangos v DPP (Supreme Court, unreported 21 July 1995) R v Jones (1997) 191 CLR 439 at 453) R v Harris (1969) 1 WLR 745 CASES CITED: R v Whelan (1973) VR 268 R v Slade (1982) 7 A Crim R 113 R v Saraswati (1989) 18 NSWLR 143 Hamzy (1994) 74 A Crim R 341 Morrow & Flynn (1990) 48 A CrimR 232 DPP v Merriman (1973) AC 584 R v Blanch (CCA, unreported, 9 August 1994) R v Nickel (CCA, unreported, 16 November 1988) R v Fetineiai (CCA, unreported, 16 July 1993) DECISION : Appeal allowed; Convictions quashed; New trial ordered

REGINA -v- Abdoula KHOUZAME REGINA -v- Samson SALIBA

1 IRELAND J: I agree with Kirby J for the reasons given by his Honour.

IN THE COURT OF CRIMINAL APPEAL 60152/98

60001/99 IRELAND J KIRBY J BELL J Friday 2 July 1999

2 KIRBY J: Abdoula Khouzame and Samson Saliba, and a third accused (who was discharged at the end of the Crown case) were each charged with aggravated sexual assault (s61J(1) Crimes Act 1900). The matter of aggravation was that the offence was said to have taken place in company. 3 The charge against each accused was in these terms: "(That) on 13 June, 1995 at Fairfield in the State of New South Wales in the company of others, did have sexual intercourse with (KD) without the consent of (KD) knowing that she was not consenting." 4 Each pleaded not guilty. The matter proceeded before Johnston DCJ and a jury as a joint trial. Both accused were convicted. 5 His Honour imposed the following sentences: · In respect of Mr Khouzame, nine years penal servitude, consisting of a minimum term of six years and an additional term of three years. · In respect of Mr Saliba, eight years penal servitude, consisting of a minimum term of five years and an additional term of three years. 6 Mr Khouzame and Mr Saliba have each appealed against their conviction. They also each seek leave to appeal against sentence.

The Complainant's Evidence 7 The complainant was a young woman, aged sixteen years. She no longer lived with her parents. She shared a granny flat with a Mr Santos, described as her boyfriend. In June 1995 the complainant was behind in the rent. She attended the office of the Department of Social Security at Fairfield to explore the possibility of obtaining some form of allowance. Whilst in the Fairfield shopping centre, she met Mr Khouzame. She had known Mr Khouzame for some nine months, and regarded him as a friend. 8 The complainant planned to go to her father's house in Merrylands. She hoped to obtain money. Mr Khouzame volunteered to get his friend to drive her there. His friend agreed. 9 The complainant entered a car in which there were a number of young males, including Mr Khouzame. They ultimately picked up Mr Saliba. 10 The group drove around the neighbourhood, calling on various friends. It was late afternoon. On one occasion, according to the complainant, Mr Khouzame positioned himself directly in front of her inside the car. His legs were on the outside of her legs. The complainant described what occurred in these words: (T 10) "A. … We were just sitting there talking for a while and then he started to rub my leg. I asked him to stop it, he did stop it, and then I got scared and I kissed him and got out of the car." 11 Ultimately, the group went to the complainant's father's home. He was not there. She gained entry through an open window. She thereafter searched for money, without finding any, or very much. She nonetheless saw two bottles of wine. She and Mr Khouzame each took a bottle. They left the premises, and re-entered the car. 12 The complainant then proceeded to drink one bottle of wine. She said she did so because she was thirsty. The others drank the other bottle. The complainant said that she was not used to drinking. She felt sick. Her head began spinning. She felt she could not move. She eventually went to sleep. The group drove to a park at Fairfield. They had, in the meantime, purchased cannabis. The complainant woke up just as they got to the park. She got out of the car, and vomited. She still felt ill. She sat at a picnic table in the park. She rested her head on the table. 13 The complainant then felt herself being touched. She felt fingers rubbing against her dress. She blacked out. When she woke up she had been moved. She had been placed on top of the table. Her stockings had been taken off. Mr Saliba unzipped his trousers. He ultimately inserted his penis in her mouth. Mr Khouzame, meanwhile, had vaginal intercourse with her. The complainant said this: (T 22) "Q. Did you say anything - can you recall saying anything to him when you came to and found yourself in this situation? A. Abdoula was the only one that I knew, so I asked him to help me. Q. You asked him to help you, and did he reply when you asked him to help you, the only one there that you knew? A. All he said - he said he couldn't." 14 The complainant said that she was crying. She repeatedly blacked out. She did, however, remember being pushed over to one side. She then said this: (T 26/27) "Q. What did you see them doing with this bottle? A. I couldn't see much because I was faced the other way, but I felt something cold. Q. Where did you feel something cold? A. In my vagina. Q. Where did the bottle go? A. Inside my vagina. Q. What did you feel when the bottle went inside your vagina? A. It hurt." 15 The complainant could not identify who had inserted the bottle. 16 Eventually the group left the park. The complainant re-entered the car with the others. She was driven to her flat, where she was dropped off. 17 According to those in the flat, she arrived home at about 8.00 pm. Her boyfriend did not observe any distress. Indeed, he thought she appeared light-hearted. She retired to bed. Within the hour she complained to her boyfriend's sister that she had "been touched". 18 The complainant then went to the police. Shortly after midnight she was examined by Dr Edwards. Dr Edwards found "gross oedema of the right labia majora" and "introitus", which she described in these words: (T 153) "A. … What she had was fluid accumulation and swelling on the outer lip of the genital area." 19 There was a blood-stained fluid seeping out of the whole of the genital area, not just the area which was extremely swollen. Dr Edwards said this: (T 155) "Q. Are you able to say, in your experience, Doctor, whether this is a type of injury usually found in persons who've been sexually assaulted? A. No, it's relatively uncommon to see - it's very uncommon to see injuries to this extent. It may be possible to see small areas of the genital area that have been abraded or have been scraped, but it's very uncommon to see this degree of swelling and this degree of fluid exuding or coming out of these tissues and in fact even examining somebody who's has had a large amount of sexual intercourse, for example, we would see people who've worked in a brothel for example, and they might have been working in a brothel for six or eight hours and, then sexually assaulted when they finished their shift and even in that sort of person you wouldn't see this type of injury." 20 Dr Edwards offered the following opinion: (T 156) "A. I can only say that it must have been quite a remarkable degree of force to have abraded all of the top cells of the genital area to the point where they were seeping in this fashion. I can't say exactly how hard that would have to be, but it was certainly much harder than is normally experienced by victims of sexual assault."

The Evidence of Mr Khouzame 21 Mr Khouzame gave evidence. Having arrived at the park, he left the group to obtain condoms. He returned in approximately twenty minutes. He then removed the complainant's stockings. He was not asked to do so. However, the complainant did not protest. They then had vaginal intercourse. The complainant, throughout, was described as behaving as follows: (T 216) "A. She was saying 'Fuck me, fuck me harder' and that. She was like pulling me towards her with her legs as well." 22 The complainant, according to Mr Khouzame, then had cannabis, as did Mr Khouzame. The events which followed were described in these words by Mr Khouzame: (T 217) "Q. Whilst you were having a few cones, was anything happening with Kylie? A. Yeah, she was giving Samson a head job. Q. What happened then? A. Then I'd finished with one of the bottles, I'd finished drinking the bottle, and I put the bottle in her. Q. What part of the bottle? A. The neck of the bottle. Q. How much of it did you insert? A. Just the neck, wine bottle. Q. For the record, you're indicating a distance, how much are you indicating? A. No more than 10 centimetres." 23 Whilst this was occurring, the complainant, according to Mr Khouzame, continued to say: "Harder, harder". 24 After this episode, Mr Khouzame had vaginal sexual intercourse once more. On this occasion, the complainant was on top of him. 25 When cross examined, Mr Khouzame said this: (T 233) "Q. Did you ask her whether you could insert the bottle into her vagina? A. No, I didn't. Q. You just did it? A. Yep. Q. Why did you do that to this girl? A. Turn her on a bit more." 26 Mr Khouzame described the complainant as not being "that pissed". She did not vomit. She was conscious throughout. She did not protest. She appeared to enjoy each aspect of their encounter.

The Case for Mr Saliba 27 Mr Saliba did not give evidence. However, unlike Mr Khouzame, he spoke to the police before being charged. His account included the following description of Mr Khouzame's actions shortly after the group arrived at the park: (Q.248) "A. … He was touching her crotch and like, rubbing her up and she was getting turned on and she's saying, I love it, I love it, I wanna get fucked." 28 Mr Khouzame then left to get condoms. Meanwhile, according to Mr Saliba, the complainant turned her attention towards him. He gave the police the following description: (Q.248) "A. … And then after that when Budy left, she's saying to me while I was getting, uh, my head job, she's saying to me, Please stick it in, please, I'm dying for it, please stick it in." 29 After Mr Khouzame's return with a supply of condoms, Mr Khouzame had vaginal intercourse on top of the table. He was followed by Mr Saliba. 30 Later in the interview, Mr Saliba added the following, referring to Mr Khouzame: (Q.663) "A. Budy grab the wine bottle, he goes, I'm gunna stick the wine bottle into her. We both said, no, don't. And he grabbed it and he started sticking it into her. He started laughing about it and he stuck it into her about seven, eight times, he pulled it out and he chucked it. At that time I was getting my, my penis uh, I was getting a head job off her, I was near her head, Alan was here and the Budy was on that side. Budy was on, near her legs sticking the wine bottle in her." 31 Mr Saliba then described the sequel, referring to Mr Khouzame: (Q.251) "A. … Then he got on top of her and started giving it to her again." 32 Mr Saliba described the way in which the episode concluded. The complainant said that she was sore. She started crying. She ultimately said these words: (Q.251) "A. … Oh, I don't want no more, I wanna go home." 33 Mr Saliba asked what was wrong. The complainant responded as follows: (Q.251) "A. … And she said to me, oh, nothing, I didn't like the way they put the bottle in me."

The Notices of Appeal 34 The Notices of Appeal raise the following issues: · First, there is an issue of duplicity. Both appellants complain that there was latent duplicity within the indictment. By the end of the evidence the duplicity was patent. The Crown, however, did not seek to amend the indictment. Nor was it called upon to elect. His Honour's charge to the jury permitted the jury to consider a number of possible offences, and make a selection. The verdict, therefore, is uncertain. · Secondly, on behalf of Mr Khouzame, it is said that his Honour failed adequately to direct the jury as to Mr Khouzame's knowledge of the complainant's lack of consent. · Thirdly, again on behalf of Mr Khouzame, it is said that his Honour failed to direct the jury as to Mr Khouzame's intoxication, and its relevance to the issue of his knowledge of the complainant's lack of consent. · Fourthly, both appellants complained that the sentences imposed by his Honour were excessive. 35 In respect of grounds 1 to 3, no complaint was made in respect of any of these matters at the trial. Rule 4 of the Criminal Appeal Rules does not apply to issues of duplicity (R v Locchi (1991) 22 NSWLR 309, per Samuels JA at 313). It does, however, apply to the second and third grounds, and leave is required. 36 I will deal with each ground in turn.

Ground 1: Was There Latent Duplicity? 37 The charge against each accused was that of aggravated sexual assault (s 61J(1) Crimes Act 1900). The Crown was obliged to prove that each accused (in the company of others) had "sexual intercourse" with the complainant without her consent, knowing that she had not given her consent. The term "sexual intercourse" is defined in s 61H(1) in these terms: "61H(1) For the purposes of sections 61H-66F, 'sexual intercourse' means: (a) Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by: (i) any part of the body of another person; or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes; or (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person; or (c) cunnilingus; or (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c)." 38 Here, the evidence disclosed a number of acts of sexual intercourse, as defined. The complainant's account suggested the following: · First, penile/vaginal intercourse by Mr Khouzame. · Second, penile/oral intercourse by Mr Saliba. · Third, bottle/vaginal intercourse by someone in the group, whom she could not identify. 39 The account of Mr Saliba to the police suggested the following acts of sexual intercourse: · First, penile/oral intercourse by Mr Saliba (A. 248). · Second, penile/vaginal intercourse by Mr Saliba (A. 248). · Third, penile/vaginal intercourse by Mr Khouzame (A. 251) · Fourth, penile/vaginal intercourse by the accused who was discharged (A. 252). · Fifth, bottle/vaginal intercourse by Mr Khouzame (A. 252 and 663). · Sixth, penile/oral intercourse by Mr Saliba while the bottle/vaginal intercourse by Mr Khouzame was taking place (A 663). 40 This was the material available to the prosecution when the indictment was framed, although the account given by the complainant to Dr Edwards, shortly after the event, was somewhat different from the evidence she later gave. She told Dr Edwards that all three men held her down whilst they each had vaginal intercourse. She said that Mr Khouzame had inserted his penis in her mouth. The complainant explained these differences upon the basis that she had endeavoured to suppress the memory of this awful night.

The Summing Up 41 His Honour identified the elements of the offence of aggravated sexual assault in company. He then said this: (S/U 8/9) "Sexual intercourse in law means exactly what it means in ordinary English. That is to say penetration of the female vagina by the male penis. Penetration of the genitalia to any extent is enough. The Crown does not have to prove that full penetration occurred, nor does it have to prove that the accused ejaculated. Sexual intercourse in law can mean any of a number of things in addition to the ordinary meaning of the phrase. It also includes the inserting of any object into the vagina of the complainant. Here the Crown alleges that there was not only penile penetration but there was also the insertion of the neck of a wine bottle into the vagina of the complainant. The placing of the penis into the mouth of the complainant is also an act of sexual intercourse according to law." 42 The summing up continued: (S/U 9) "As I understand the way the case had been presented by the Crown the Crown alleges a number of acts. Penetration of her vagina by a penis, insertion of a bottle into the vagina and the placing of the penis in her mouth. Each and every one of those acts constitutes sexual intercourse within the meaning of the law." 43 The jury then retired. It returned with a number of questions. One question was directed very precisely at the issue of duplicity. The question was in these terms: "Question 1. 'Of the three scenarios of sexual intercourse, (1) penile vaginal, (2) penile oral, (3) object vaginal, if only one of the three was not consented, yet occurred, does the verdict of guilty apply to non-consensual sexual intercourse?'" 44 His Honour discussed with counsel the way in which the question should be answered. His response met with the approval of all counsel. It was as follows: "The allegation against the accused Khouzame is that he had penile vaginal intercourse with the complainant, and (2) that he inserted the neck of the wine bottle into the vagina of the complainant. If either act is found to be non-consensual, the verdict is guilty, if either act is found. So if you are satisfied that he - well I think that speaks for itself. Do you understand that? He is charged with vaginal penile intercourse and it is also alleged that he inserted the bottle. So if either act is found to be non-consensual, the verdict is guilty. If neither act is found to be non-consensual, then the verdict is not guilty. In other words, what the Crown must prove is that she was not consenting and that the accused knew that she was not consenting." 45 In providing that answer, counsel and his Honour apparently overlooked the further act of penile/vaginal intercourse by Mr Khouzame after the bottle incident, which Mr Khouzame acknowledged in his evidence. 46 His Honour then dealt with Mr Saliba. He said this: "In relation to the accused Saliba, the allegation there is that he had both oral intercourse with her, that is by placing the penis in the mouth, and that he had vaginal intercourse by placing his penis in the vagina. In either act is found to be non-consensual, then the verdict is guilty." 47 Again, those present at the trial overlooked the further act of intercourse, acknowledged by Mr Saliba when interviewed by the police, which took place at the time of the bottle incident. Mr Saliba told the police that, during the time Mr Khouzame was inserting the bottle, his penis was in the complainant's mouth. 48 The Crown was not called upon to elect as to which act of sexual intercourse was the basis of the charges against each accused. Nor did it seek to amend the indictment, multiplying the charges so that they matched the evidence. Counsel for both accused, apparently, were content to allow the matter to go to the jury upon the basis of the charges as laid.

Remarks on Sentence 49 The jury having found each accused guilty, his Honour then passed sentence. In his remarks on sentence, his Honour referred to the various acts of sexual intercourse by each prisoner. His description did not conform precisely with the evidence. The differences, however, are not material, except for the following, about which complaint is made on behalf of Mr Saliba: (S 2) "She woke up to see the prisoner Saliba who placed his penis in her mouth. This took place while Khouzame was having vaginal intercourse with her. Some time later Saliba removed his penis from the complainant's mouth and the prisoner Khouzame removed his penis from her vagina." 50 There was no evidence to support that statement. There was evidence that, at the time Mr Saliba had his penis in the complainant's mouth, Mr Zhouzame repeatedly inserted the bottle in her vagina. This, however, was a matter of aggravation in respect of Mr Khouzame, not Mr Saliba. 51 His Honour then said this: (S 3) "Both prisoners, whilst admitting acts of sexual intercourse with the complainant, claimed they did so with the consent of the complainant. This clearly has been rejected by the jury.' 52 That statement raises the dilemma which the rule against duplicity seeks to overcome. Can it be inferred from the jury's verdict that, in respect of each act of intercourse, the jury was satisfied that the complainant had not consented? Is the position, rather, that one can only infer that the jury was satisfied that at least one act of intercourse took place in respect of each accused, without the consent of the complainant. Indeed, even that may overstate the position. Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266, a case involving a charge of carnal knowledge, made the following remark, which might apply equally to the present case: (at 287/288) "… the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act ... " 53 The Court of Criminal Appeal in Western Australia, in circumstances which were not dissimilar to the present case, drew attention to the same dilemma in Andrew Lapthorne (1989) 40 A Crim R 142, when it said this: (at 146) "In the present case it remained uncertain throughout which was the act of intercourse relied upon as constituting the offence charged in the indictment or any alternative offence. It is possible, for example, that some members of the jury were convinced there was penetration in relation to the first act and the remaining members of the jury were not, but those remaining members of the jury were convinced that there was penetration in relation to the second act. Had there been two counts of unlawful carnal knowledge the position would then have been that the jury was unable to agree and the appellant would have been discharged." 54 There can be no doubt that, when sentencing each accused, his Honour dealt with them upon the basis that each act of intercourse was without the consent of the complainant.

The Purposes of the Rule Against Duplicity 55 The rule against duplicity is easily stated. Its application is rather more difficult. Each count in the indictment should charge only one offence. The broad basis of the rule was identified by Gaudron and McHugh JJ in S v The Queen in these words: (at 285) "The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet." 56 Their Honours elaborated in the following passage: (at 284) "One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict." 57 The relevance of the rule has, nonetheless, been questioned. Its application has been relaxed in the United Kingdom, and elsewhere (Walsh v Tattersall (1996) 188 CLR 77, per Kirby J at 92). Nonetheless, the High Court, by majority, in Walsh v Tattersall, reaffirmed what might be termed the strict approach to duplicity. 58 Spigelman CJ (with whom Abadee and Adams JJ agreed) in R v Giam [1999] NSWCCA 53, said this: (at para 23) "Whilst the doctrine of duplicity has been subject to some criticism over recent years, its reaffirmation in Walsh v Tattersall is such that plainly this Court would apply it." 59 There are a number of advantages in strictly observing the rule. In Walsh v Tattersall the accused had been charged with an offence under the Workers Rehabilitation and Compensation Act 1986 (SA). The charge was that between October 1992 and October 1993 he had dishonestly obtained payments and benefits under the Act. The issue was whether a single count, covering the receipt of many benefits, was appropriate. Should there have been separate charges in respect of each occasion upon which benefits were obtained? Kirby J said this: (at 111) "If each payments and benefits had been separately charged, it would still have been open to the prosecution to suggest that an inference of dishonesty, proved beyond reasonable doubt, carried over from one early payment or benefit to those that followed. But at least the attention of the prosecutor, the accused and the judicial decision-maker would then have been focused upon each individual offence." 60 By isolating each offence, an accused may be encouraged to acknowledge responsibility for aspects of his or her conduct. If these aspects are combined in the one count with other matters, in respect of which there is a contest, a plea of not guilty to the composite count is inevitable. 61 Here, if separate counts had been charged, each accused may have been prepared to plead guilty to certain charges, but not others. The Crown, depending upon the concessions made, may have accepted such pleas in satisfaction of the indictment. Specificity, in short, may ultimately contribute to efficiency. 62 There are also the advantages identified by Gaudron and McHugh JJ in respect of sentence. Plainly, the trial Judge would have been assisted by knowing whether the jury had regarded each act of sexual intercourse as non-consensual. If, contrary to the trial Judge's surmise, the jury believed that some, but not all, such acts were non-consensual, his Honour's assumption (and the sentences imposed upon the basis of that assumption) was unfair to the accused. 63 Finally, the charges preferred should accurately reflect the criminality of the conduct alleged. It is plainly worse to have non-consensual sexual intercourse three times, as alleged against these appellants, than once. Why, then, is it inappropriate to have three charges? In Mangos v DPP (Supreme Court, unreported, 21 July 1995), the Court was concerned with an alleged breach of s 11(1) of the Children (Criminal Proceedings) Act 1987. It was said that Mr Mangos had, in the course of a radio broadcast, repeatedly named a child who was the subject of criminal proceedings. Sixteen informations were laid against Mr Mangos. He complained that the number of charges was oppressive, and did not fairly reflect the criminality alleged. Allen J identified the policy of the legislation in these words: (at 6) "The statutory prohibition against the naming of a child convicted of a crime is directed to the protection of the child and the very real public interest and concern that, albeit that the child must be punished, he should not be so publicly pilloried, as an individual, that his prospects of becoming a stable and decent adult are thereby marred." 64 His Honour then dealt with the argument put on behalf of the accused: (at 6/7) "In the present case it is highly pertinent that the naming of X on the 16 occasions occurred in a breakfast session radio broadcast extending over two hours from station 2KY which, as a matter of common knowledge, is one of the major stations for Sydney and its suburbs. The nature of the broadcast, moreover, was one in which the public was invited to ring up and participate in discussion concerning X - and did so. In my judgment it would have been quite inappropriate not to have preferred a number of charges." 65 However, there are also difficulties in the strict approach. Multiple counts can be oppressive. Their impact upon the jury, even before the evidence begins, may prejudice a fair trial. They add to the length and complexity of the summing up. They can be confusing to the jury. The sheer number of counts may invite compromise (cf R v Jones (1997) 191 CLR 439 at 453).

The Difficulties Facing the Prosecution 66 Further, in the context of this trial, there were obvious difficulties for the prosecution in identifying the separate acts of penetration by each accused. The episode was, for the complainant, obviously traumatic. She was intoxicated. She blacked out from time to time. Her recollection was imperfect. The ERISP interview of Mr Saliba defined more closely his role. It also provided some insight into the actions of the other accused. Mr Khouzame, however, declined to be interviewed, as did the third accused, who was ultimately discharged. Mr Khouzame's evidence at the trial, as it happens, did not contradict that of Mr Saliba in his description of the part which each played. Mr Khouzame acknowledged that he had been responsible for the insertion of the bottle, as Mr Saliba had alleged. However, from the viewpoint of the prosecution, looking towards the trial, it may have been otherwise. It was possible, at the trial, that Mr Khouzame may attribute responsibility for the bottle to Mr Saliba, or choose not to give evidence. 67 What, in these circumstances, should a prosecuting authority do? If the episode was not to be treated as one, must it dissect the available evidence into the individual acts of penetration? Should Mr Khouzame have been separately charged with sexual intercourse by means of a bottle, on the faith of Mr Saliba's accusations to the police (which were inadmissible against Mr Khouzame)? Should both accused have been charged upon the basis that Mr Saliba attributing responsibility to Mr Khouzame may be unreliable? 68 An indictment designed to cover the possibilities is likely to have been long. The undesirability of unnecessarily long indictments has been the subject of comment by Courts on a number of occasions (see, for example, Archbold Criminal Pleading, Evidence and Practice 1998 p 42, para 1-112). 69 There is, of course, power to amend the indictment (s 365(1) Crimes Act). However, there are limitations upon the exercise of that power. In S v The Queen, Dawson J said this: (at 274) "In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial: Radley (1973) 58 Cr App R 394, at 403." 70 These difficulties, at least in cases before Walsh v Tattersall, have prompted certain judges to encourage prosecuting authorities to take a broad view of an episode giving rise to sexual charges. In circumstances, for instance, where a lesser offence was committed as a preliminary to a more serious offence, the Courts have repeatedly said that the accused should only be charged with the more serious offence. In R v Harris (1969) 1 WLR 745, Edmund Davies LJ said this: (at 745) "It is perfectly clear on reading the transcript that the two charges related to one and the same incident. There is no suggestion of any indecent assault upon this same boy except that which formed the preliminary to and was followed very shortly thereafter by the commission of the full act of buggery. It does not seem to this court right or desirable that one and the same incident should be made the subject-matter of distinct charges, so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue." 71 The same view was taken by the Full Court in Victoria (Winneke CJ, Barber and McInerney JJ) in R v Whelan (1973) VR 268. 72 In R v Slade (1982) 7 A Crim R 113, a nurse was seized as she was walking from work, and sexually assaulted. Four charges were preferred, two of aggravated assault, one of indecent assault, and one of rape. All offences occurred within the space of twenty minutes. Everett J said this: (at 45) "In my opinion it is undesirable that the facts and circumstances of what is in reality one incident or episode should be minutely dissected in order to distil from them as many different crimes as possible and include them as separate counts in the same indictment." 73 In a somewhat different case, R v Saraswati (1989) 18 NSWLR 143, Hunt J said this: (at 145) "The Crown should not be permitted to divide the one incident into a number of separate charges - a tendency which has been vastly aggravated, for example, by the introduction of the new range of sexual assault offences in 1981." 74 Mahoney JA, in the same matter, was somewhat more circumspect. He made the following comment: (at 144/145) "His Honour, in his examination of the decisions, has considered the propriety of the Crown charging an offence based on a separate incident which forms part only of a single and larger sexual episode. The propriety of the dissection of a single episode by the selection of and the charging in respect of a separate incident is a matter which may require consideration in an appropriate case. However, I do not think that it is necessary, for the decision of the present appeal, to express a concluded view upon the limits of what may be done in this regard." 75 In the context of these decisions, the Crown has urged a practical approach. It submitted that there was no unfairness to the accused in the circumstances of this trial. They each knew exactly what was being alleged. They made no complaint. They asserted, from first to last, that the complainant had consented to their actions that afternoon. The complainant denied that assertion. That was the issue, and the only issue.

The Ambit of the Rule 76 What, then, is the ambit of the rule against duplicity? In Walsh v Tattersall, Kirby J encapsulated the rule, and its exceptions, in these words: (at 112) "This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges." 77 Here, there is no statutory warrant for aggregating in the one count a number of acts of intercourse. Indeed, the statute, it may be thought, clearly signals the reverse. The definition in s 61H(1) of "sexual intercourse" suggests that the Crown must identify each act of penetration, and make it the subject of a separate count (although it has a discretion not to charge every offence). 78 What is comprehended by the two exceptions, namely those offences which can be characterised as continuing offences, and matters where the facts are so closely related that they amount to the one activity? In respect of continuing offences, in Walsh v Tattersall, Gaudron and Gummow JJ said this: (at 91) " … it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond ( Loftus v Woodworth [1936] VLR 279). There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself." 79 Kirby J, in the same case, provided the following illustrations: (at 107) "Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment ( Daly v Medwell (1986) 40 SASR 281) and trafficking in drugs ( Giretti and Giretti (1986) 24 A Crim R 112)." 80 An elaboration upon the other exception (matters which are, in truth, the one activity) was provided by Kirby J in these words: (at 107) "If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count ( Jemmison v Priddle [1972] 1 QB 489)? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England ( Director of Public Prosecutions v Merriman [1973] AC 584 at 607). If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible ( Montgomery v Stewart (1967) CLR 220)." 81 His Honour added: (at 108) "Ultimately, what is presented is a question of fact and degree for decision in each case: Eades (1991) 57 A Crim R 151 at 156. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct ( Weinel v Fedcheshen (1995) 65 SASR 156 at 170 per Perry J." 82 Here, the charges against the appellants could not be characterised as a continuous activity (cf Hamzy (1994) 74 A Crim R 341). If they fall within an exception, it is that the actions of the appellants may be regarded as so close in time and place that they were a composite activity. 83 In Morrow & Flynn (1990) 48 A Crim R 232, Connolly J (Macrossan CJ and Kelly SPJ concurring) said this, referring to the speech of Lord Morris of Borth-y-Gest in DPP v Merriman (1973) AC 584 at 592: (at 235) "It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in terms of Lord Morris's speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations, by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim's struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape. On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand. Technically the Crown could charge each knifing and the pursuit as separate offences of attempted murder. There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done. If Sperotto (1969) 71 SR (NSW) 334 decided to the contrary, it should not, in my respectful opinion, be followed." 84 In R v Blanch (CCA, unreported, 9 August 1994) the accused was charged with indecent assault of a child under the age of sixteen years. The allegations of the complainant were described by Badgery-Parker J in these words: (at 2) "After she had gone to bed and before her mother returned home, the appellant came into her room, lay on top of her and moved up and down in an act which the learned trial judge said 'as described sounds rather like simulated intercourse'. She said that having first acted in that fashion he got up and left the room but returned and resumed the same activity. In all he repeated the act a number of times. She was not certain how many times but thought it was about five times." 85 The accused submitted that the Crown should have been required to elect as to which incident it relied upon. Dealing with that submission, his Honour said this (Studdert and Bruce JJ concurring): (at 3) "… the short answer to the appellant's submission is that this is not a case of the kind dealt with in S v The Queen . That and the other cases upon which the appellant relies are distinguishable. The charge here related to a single night, indeed a single period of about one hour on that night, in the course of which the appellant was alleged to have engaged in a course of conduct which the Crown was content to charge as a single offence of indecent assault. It was open to it to do so." 86 His Honour added: (at 4) "It would have been unfair and oppressive for the Crown to have brought four or five counts alleging as successive indecent assaults the component parts of what on any realistic view was a single episode." 87 That case was, of course, determined before Walsh v Tattersall. 88 Here, the acts of "sexual intercourse" (as defined) by each accused were separate and distinct. They each had a beginning, and an end. There were differences between the various acts of penetration (penetration by means of the bottle, the insertion of the penis in the complainant's mouth, and penile penetration of her vagina). In R v Nickel (CCA, unreported, 16 November 1988) the appellant had been charged with "sexual intercourse" within a very broad time frame. The complainant gave evidence of two separate acts of assault. One was said to have occurred in the bedroom, and the other in the kitchen. Gleeson CJ (with whom Lee CJ at CL and Allen J agreed) said this: (at 4) "Without going into the detail of the evidence, it suffices to say that there was a rational basis upon which individual jurors ultimately could have concluded that either one of the alleged incidents occurred but not the other. For example, in considering whether the bedroom incident occurred, a juror could well have had a doubt by reason of the evidence of the complainant's mother, which in effect contradicted the complainant's account of that incident. In relation to the kitchen incident, a doubt could have arisen in the mind of an individual juror by reason of certain inconsistencies in evidence which the complainant had given about that matter." 89 Here, the complainant sustained significant injury. Individual jurors may, nonetheless, have seen an issue relating to whether she had given her consent in the initial stages. She acknowledged that she had kissed Mr Khouzame. She had consumed a whole bottle of wine. She denied, in cross examination, that she had done so to loosen her inhibitions. Her injuries, no doubt, made consent less of an issue in respect of later acts of intercourse (including the insertion of the bottle). Had there been separate charges, there was a rational basis upon which jurors could have discriminated between charges, and convicted the appellants on some, but not others. 90 I believe the charges, as framed, were bad for duplicity. The Crown should have been called upon to elect. Having not done so, the conviction is uncertain. It cannot be said that there was no substantial miscarriage of justice (S v The Queen (1989) 168 CLR 266, per Toohey J at 283, and Gaudron and McHugh JJ at

287/288). In respect of both appellants, there should be a new trial.

Ground 2: Knowledge of Consent 91 Ground 2, asserted on behalf of Mr Khouzame, was framed in these terms: His Honour failed adequately to direct the jury on the issue of the appellant's knowledge of lack of consent. 92 His Honour, appropriately, gave the following direction: (S/U 10-11) "The accused here say that he believed - and I am talking about each accused - that she did consent. He does not have to prove that he held this belief, it is for the Crown to prove beyond reasonable doubt that he knew that she was not consenting." 93 Thereafter, his Honour dealt with the basis upon which the jury might infer knowledge on the part of Mr Khouzame of the absence of consent. In the course of doing so, his Honour used expressions such as "must have known" and "must have been apparent to him". Upon that basis, counsel for Mr Khouzame, in this appeal, made the following submission: "The directions the trial judge gave to the jury on the appellant's knowledge of lack of consent went dangerously close to importing an objective test rather than a subjective one…" 94 However, a fair reading of the summing up, taken as a whole, makes it clear that the jury was instructed in appropriate terms. His Honour concluded his directions, on this aspect, with the following words: (S/U 12) "If you have a reasonable doubt as to any of those above three matters, that is that the accused had sexual intercourse with the complainant, that she did not consent and that he knew that she did not consent, then the accused must be found not guilty." 95 The jury retired, and thereafter came back with a question (to which reference has been made). His Honour's answer to that question included the following words: "In other words, what the Crown must prove is that she was not consenting and that the accused knew that she was not consenting." 96 No complaint was made by counsel at the trial. No redirection was sought. I believe that there is no substance in the second ground.

Ground 3: Intoxication 97 Ground 3 (again, asserted on behalf of Mr Khouzame) was as follows: His Honour erred in failing to direct the jury about the relevance of the appellant's intoxication on the issue of knowledge of lack of consent. 98 Mr Khouzame smoked cannabis when he arrived at the park (T 227). He described himself as "stoned". When asked to define what he meant by that word, Mr Khouzame said this: (T 227/228) "A. It makes you relax. That's about it. Q. Just makes you relax? A. Yeah. Q. Does it assist you - please, you tell me how it affects you - does it assist you to do something that you, in your system, assist you to do something that you mightn't otherwise have done? A. No, never. Q. It doesn't stop the true you? A. No, because I smoke every day. Q. May we take it that being stoned has no effect upon your state of mind? A. No. Q. It doesn't make you do things you wouldn't otherwise do? A. No." 99 Mr Khouzame also consumed half a bottle of wine. He described himself as "a bit tipsy". When cross examined, he gave the following evidence: (T 228) "Q. So may we take it - I'm just trying to eliminate any possibilities here, Mr Khouzame; firstly, that the ingestion of drugs could have affected your state of mind? You say No? A. No. Q. And that the ingestion of alcohol could have affected your state of mind; you say No? A. No. Q. You knew precisely what you were doing at all times? A. Yeah. Q. And you intended to do it? A. Sorry? Q. And you intended to do it? A. Yeah." 100 The appellants' case was that the complainant had consented. It is difficult, in such circumstances, for an accused to assert the somewhat inconsistent defence, namely that if consent were not given, the jury should still consider whether the accused, by reason of his intoxication, was unaware that consent had been withheld. An accused may, for sound tactical reasons, choose not to put such a case. Here no such case was put on behalf of Mr Khouzame. No direction on intoxication was sought. 101 Nonetheless, where (as in this case) there is evidence of intoxication, the fact that a party choses not to raise the issue is not determinative. In R v Fetineiai (CCA, unreported, 16 July 1993) Kirby P said this, referring to the duty of the trial Judge to give appropriate directions: (at 17) "That duty is assisted, but not controlled, by the issues which the parties choose to litigate. It is precisely because the judge has an independent function to instruct the jury on the relevant matters of law, as that law touches the evidence in the case and might affect the jury's verdict, that the judge has the duty to inform the jury on relevant and applicable principles of law." 102 In the same case, Hunt CJ at CL made the following statement: (at 3) "The presence of such evidence did require the judge to give directions in relation to that issue: Pemble v The Queen (1971) 124 CLR 107 at 117-118, 130; Viro v The Queen (1978) 141 CR 88 at 118; and notwithstanding that in doing so he may injure the case which the appellant was seeking to make at the trial upon another issue: Regina v Stokes & Difford (1990) 51 A Crim R 25 at 32." 103 Here, a direction on intoxication should have been given. Had it been given, it would have included the following (per Hunt CJ at CL in R v Fetineiai): (at 2) "… a proper direction as to intoxication would have warned the jury that, in many cases, intoxication does no more than remove inhibitions or restraints and induce a sense of self-confidence and (sometimes) of aggressiveness: see Regina v Coleman (1990) 19 NSWLR 467 at 486." 104 However, the absence of such a direction does not automatically confer a right to a new trial. There being no request for such a direction, leave is required under r 4 of the Court of Criminal Appeal Rules. In R v Fetineiai, Hunt CJ at CL made the following statement upon that rule: (at 3) "The requirements of that rule do not constitute some mere technicality which may simply be brushed aside. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial: Regina v Abusafiah (1991) 24 NSWLR 531 at 536. Nevertheless, leave will be granted pursuant to r 4 where the absence of the direction in question has been shown by the appellant to have led to a miscarriage of justice: ibid (at 536); Regina v Tripodina (1988) 35 A Crim R 183 at 191-195. Such a miscarriage will usually be shown if the appellant was denied a real chance (or a chance which was fairly open to him) of being acquitted because such a direction was not given: cf Regina v Zorad (1990) 19 NSWLR 91 at 108; Regina v Stokes & Difford (at 33)." 105 Given Mr Khouzame's evidence on intoxication, and the potentially adverse nature of the appropriate directions, I do not accept that such a miscarriage has been demonstrated in this case. Accordingly, I would refuse leave to rely upon Ground 3.

2. The convictions of both appellants are quashed, and the sentences, in each case, set aside.

3. That in respect of each appellant there should be a new trial. **********

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