Shiv v R

Shiv v R - [2021] NSWCCA 245 - NSWCCA 2021 case summary — Zoe

Judgment

LEEMING JA: Mr Balram Shiv appeals from his conviction on one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW).
The first ground of appeal is that the guilty verdict is unreasonable and cannot be supported in light of the jury's verdicts of not guilty on counts 1, 4, 5, and 6 of the same indictment. All counts were based on his alleged sexual assaults of the complainant on the evening of 13 June 2017, when she was affected by alcohol. Both the complainant and Mr Shiv gave evidence and were cross-examined. The trial judge recognised the arguability of the present appeal by continuing bail immediately after imposing a sentence of imprisonment for 29 months with a non-parole period of 19 months. The District Court's power to do so rested upon Mr Shiv already having filed an appeal against conviction, and it being established that special or exceptional circumstances existed that justified a grant of bail: Bail Act 2013 (NSW), s 22.
Mr Shiv also advanced a second ground of appeal, based on a complaint concerning a so-called "Markuleski direction", to the effect that the direction given by the trial judge as to how any doubts about the reliability or credibility of the complainant's evidence affected the jury's consideration of the remaining counts needed, in the circumstances of this case, to be stronger than it was. Her Honour had instructed that: "If you were to find the accused not guilty on one particular count, particularly if that was because you had doubts about the reliability or credibility of the complainant's evidence, then you would have to consider how that conclusion affected our consideration of the remaining counts."
The submission was that the direction to the jury should have been to the effect that "any doubt they possessed as to the complainant's credibility and reliability was one they must take into account in consideration of her veracity in respect of other counts" (written submissions, paragraph 85). In oral submissions, it was confirmed that this was propounded as a matter contributing to the orders sought on appeal, namely, quashing of the conviction. The appellant explicitly disavowed reliance upon any misdirection as a free-standing ground (such that if the verdicts were not found to be inconsistent but the jury had been misdirected, there would be a retrial). That course was prudent. There are substantial difficulties to this ground succeeding if it stood by itself. The first problem is the obstacle presented by r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 for leave to challenge a ruling which was raised in advance with counsel then appearing for Mr Shiv, to which he had an opportunity to be heard, and as to which he expressed satisfaction although initially contending for a different wording. The second problem is that the direction to the jury actually given by the trial judge is mandatory. The words "you would have to consider" do not leave the jury with any choice. Courts presume that juries act in accordance with the directions given to them by the trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], [31]-[32]; Caleo v R [2021] NSWCCA 179 at [151]. It is generally necessary to establish an error leading to a miscarriage of justice when obtaining leave to appeal where no objection was taken at trial: see the authorities collected in Shi v R [2020] NSWCCA 258 at [98]. I struggle to see how in substance the jury direction which was given was materially different from "you must consider" or "you must take into account" save as a matter of emphasis and expression, and thus struggle to see how the error of which complaint is made could lead to a miscarriage. In short, had this ground been pressed, I would not have granted leave.
Thus in substance there was a single ground of appeal. Leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required because the ground does not involve a question of law alone, but this is a clear case for a grant of leave confined to ground 1.

[3]

The indictment

The appellant stood trial in the District Court constituted by a judge and jury of twelve on an indictment containing 7 counts, all of which related to sexual assaults said to have been committed by him upon the complainant. Both the appellant and the complainant and indeed all relevant witnesses at this trial were of Nepalese ethnicity. For the most part the conversations between them, whether in person or by telephone or by social media, took place in Nepalese.
The complainant cannot be identified, by reason of s 578A of the Crimes Act. Referring to the full names of most of the witnesses may indirectly contravene that section. For that reason, and without conveying either disrespect or informality, I shall follow the course taken at trial and on appeal and refer to the principal witnesses by their given names.
The indictment followed the complainant's chronology of the events of the evening of 13 June 2017. 1. Count 1 was that the appellant had committed an indecent assault contrary to (former) s 61L of the Crimes Act by touching the complainant's breasts. 2. Count 2 was a count of sexual intercourse without consent, contrary to s 61I, by performing cunnilingus upon the complainant. 3. Count 4 was a second count of sexual intercourse without consent, contrary to s 61I, based on penile-vaginal sexual intercourse. 4. Count 5 was a count of indecent assault, based on the complainant's account that the appellant was touching her chest and sides with his hands. 5. Count 6 was a further count of indecent assault, based on the complainant's account that the lower part of the appellant's body moved against her buttocks.
Separate mention should be made of counts 3 and 7. Count 3 was in the alternative to count 2, and was a further count of indecent assault based on the allegations of cunnilingus. In light of the absence of any element of penetration in the definition of sexual intercourse in the form of cunnilingus in (former) s 61H, this alternative count had no substantive content. It was agreed at trial that a guilty verdict on count 2 entailed that this count did not arise, while a not guilty verdict on count 2 entailed a not guilty verdict on count 3. (An explanation was given to the trial judge that extradition proceedings were on foot and the Crown was bound to pursue the same indictment.) I mention this because of a submission made by the appellant based on the way in which the jury returned its verdicts.
Count 7 was a further count of indecent assault. It was that immediately after the touching giving rise to count 6, the appellant had placed his hand inside the complainant's leggings and touched her vagina. The Crown stated in opening the case that "I do not expect the Crown to call evidence capable of substantiating that charge and you will be directed at the appropriate time about what to do with that". In due course the jury was directed to enter a not guilty verdict. This is relevant to the positive case advanced by the appellant of consensual digital penetration.
The most important distinction for present purposes was between counts 1, 2 and 4 on the one hand, and counts 5 and 6. The complainant's evidence was that counts 5 and 6 occurred after others had arrived at the apartment, had seen her in clothes soiled by vomit, and had washed her and dressed her in clean clothes. Counts 1, 2 and 4 occurred earlier that evening, when the only other person in the apartment aside from the appellant was her co-tenant Geeta, who was also affected by alcohol.

[5]

Factual background

The complainant had moved to Sydney from her birthplace of Nepal in July 2016 when she was around 18 years old. She was undertaking a degree in nursing at Western Sydney University and working at McDonalds at Mascot. At the time of the alleged offences, she was 19. She rented a shared room in a two-bedroom apartment in Carlton, Sydney. She shared that room and its bed with another young Nepalese woman, Geeta. The lease for the apartment was held by a slightly older Nepalese woman, Nisha.
The appellant was a United States citizen and resident, but of Nepalese ethnicity. He was aged 33. The appellant had previously met Nisha while both were in Nepal. Both the appellant and Nisha had been married but were separated from their spouses. He and Nisha had remained in contact online. He visited Australia for the stated purpose of meeting with her, arriving on around 9 June 2017. He stayed with her in the apartment for some days.
On the evening of 13 June 2017, Nisha had stayed out with a friend. She had university exams at that time, and said that she was studying, and staying overnight with that friend. Mr Shiv arrived at the apartment with a bottle of tequila and offered to share it with the complainant and Geeta. The three shared the entire bottle and some snacks, before travelling together by Uber and train to buy a second bottle and return with it to the apartment. All of the evidence was to the effect that the atmosphere was friendly between the three of them. The complainant had previously been drunk, but was not an experienced drinker of liquor.
The offences for which the appellant was charged occurred after the three returned to the apartment. The evidence of how the evening unfolded is summarised below. There was no dispute that both Geeta and the complainant were affected by alcohol no later than around 10pm. Both vomited over their clothes.
The sequence of other witnesses arriving at the apartment was as follows. 1. First, another friend of Geeta, Yuna, telephoned that evening, and in response to being told by Geeta of the alcohol that she and the complainant had drunk, Yuna arrived and took Geeta with her to her own nearby apartment, where she lived with relatives. 2. Yuna and one of her relatives, Mr Tandukar, returned to the apartment where they found the complainant and the appellant. The complainant was asleep, and partly undressed. 3. Nisha gave evidence that Yuna had telephoned her letting her know that there was a party happening in her apartment. She said that she rang and no one at the apartment answered, and that she sent text messages to the appellant, and received a text message later that evening from him saying that he had been sleeping. A little later, she received another call from Yuna. She said this was at around 10pm. She said she could not remember Yuna's words but said that Yuna said that the appellant "did something to" the complainant, that the complainant was crying, that Geeta had vomited and that Yuna would be taking Geeta home. Nisha returned to her apartment at around 11pm, and said that she found there Yuna and Mr Tandukar, as well as the appellant and the complainant. 4. Finally, Geeta asked a friend of hers, Mr Hamze, to come over. He drove first to the apartment, then was redirected to Yuna's apartment, where he picked up Geeta, and then returned to the apartment with Geeta, where he spoke with the appellant.
There was abundant evidence of timely complaint of sexual assault. The complainant complained to Geeta and Yuna and another friend. She contacted triple-0 the following morning.
The appellant gave evidence that there had been some consensual intimate contact between them, including kissing and digital penetration of the complainant's vagina. There was evidence of a confrontation with Nisha, although there was a conflict as to whether that was because of his conduct with the complainant or her absence from her apartment. She told him to leave. He flew to the United States the following morning. That was more than a week earlier than he had planned.
That overview suffices in order to understand the procedural history of the trial and to appreciate the force of the documentary and testimonial evidence. In accordance with settled principle, this Court's task in determining a ground of appeal based on the jury's inconsistent verdicts requires seeking to reconcile the verdicts with the facts of the case, with a focus on the explanation for the acquittals. In order to do so, what follows contains a fuller summary of the evidence the jury saw and heard over the four days in which evidence was adduced.

[6]

Documentary evidence

The documentary evidence at trial was as follows. 1. There were photographs of the rooms in the two bedroom apartment where the complainant lived, and a diagram of the layout of those rooms. 2. The Uber receipts tendered at trial demonstrated that the journey to acquire a second bottle of tequila took place between 8:43 and 8:46pm. 3. Exhibit H was a receipt for a bottle of tequila, with the transaction occurring at 8:51pm. There was a photograph of a 750ml bottle of tequila, which appeared to be ¾ full, photographed in the late morning of 14 June 2017, after the appellant had left the apartment. 4. There were also pictures from CCTV at Kogarah railway station at 8:54pm and Carlton railway station at 9:01pm showing the complainant and the appellant holding hands as they walked up a flight of steps. 5. Documentary evidence, tendered over the appellant's objection, established that he booked his flight at 3:17am on the morning of 14 June 2017. No complaint was made in this Court of her Honour's ruling that the documents were admissible evidence of consciousness of guilt. Ultimately, it was common ground that Nisha had told the appellant that he could not stay in her apartment, and on his case that prompted him to accelerate his return to the United States by more than a week. 6. Another Uber receipt showed that the appellant travelled to the airport departing at 8:45am on the morning of 14 June 2017. 7. The complainant's triple-0 call was played to the jury. A transcript was provided to this Court. It was made at 9:19am on 14 June 2017. She stated that she had borrowed a passing tradesman's phone, not having been able to find her own. The transcript records her as saying: "I ah yesterday, I'm not sure, actually I was with my friend and with that guy, so we were all three ah just drinking. And I, I, I strongly know that like he sexually assaulted me the night." She continued: "I strongly know that yesterday he did that, he sexually assaulted me against my will. I know I was drunk… it was my fault, I should not have been drunk when he did that… (indecipherable) I, I, I actually didn't even remember what happened after that or anything, I don't remember anything, anything." She said that she wasn't sure but that the appellant might still be at the apartment (in fact, he had left by Uber a few minutes earlier). The operator advised that she would make it a priority for someone to get there as soon as possible. 1. Police arrived shortly after the triple-0 call. Samples were taken from the complainant later that day and a sexual assault investigation kit was completed. Significantly, in the patient history the complainant completed at the hospital, she said: "He touched [the complainant] and removed her clothes then he kissed [the complainant's] breasts and had vaginal penetrating sex with [the complainant] against her wishes. [The complainant] can't remember whether he ejaculated or not. After the assault [the complainant] vomited and woke up with a new set of clothes (not sure who changed them)." 1. Hospital records note that the complainant was examined for sexual assault between 12:20pm and 1:20pm on 14 June 2017. 2. Much was sought to be made at the hearing of this appeal of the fact that the complainant had not explicitly mentioned cunnilingus to her friends or on the triple-0 call or in her statement made in hospital, and it was suggested that if could be inferred that this was why a specific saliva test was not carried out on other samples taken from her. Those submissions appear to have been made without regard to entries on the same form which contained the handwritten account reproduced above. Although the complainant's patient history is silent as to cunnilingus, a later page of the form under the heading "Summary of Non Consensual Penetrative Assaults" indicated that she complained of physical contact to her vulva/vagina by the appellant's penis, finger and tongue. 3. Exhibit C comprised three pages of a Facebook Messenger conversation, mostly in Nepalese, between the complainant and a friend, written while the complainant was in St George Hospital. The complainant translated her account to the effect that: "last night we had tequila in our, in our unit and Nisha's boyfriend came from the US." The complainant then testified: "I'm saying something like, like, 'he destroyed my life' something, in our language. And she's asking what happened, well, 'what did you do?' and I'm saying, 'I was confused and, and he raped me'." 1. There are times indicated on the conversation, but (as the parties were advised during the hearing) they are not legible in the appeal books. There are also some entries in English, including "I was unconscious" and "He raped me yar". 2. Exhibit D comprised five photographs of Geeta's mobile handset displaying a Facebook Messenger conversation, in Nepalese, between the complainant and Geeta. One passage gave rise to a substantial dispute at trial, which will be explained below. The images do not disclose the time each message was sent. 3. An expert certificate from the NSW Forensic and Analytical Science Service recorded the results of the testing of swabs taken from the complainant when she was in hospital. A low vaginal swab and a vulval swab both disclosed DNA with the same Y-STR profile as Mr Shiv (which was also expected to occur in approximately 1 in 750 unrelated males in the general population) but semen was not detected. A saliva test had been carried out on the complainant's skin near her breast and no saliva was detected. The evidence on which the indecent assault comprising count 1 was ultimately based did not include kissing the complainant's breasts, and she did not at trial say that that occurred.
Finally, extracts of a statement of another witness, Mr Hamze, a friend of Geeta, were read to the jury without objection and without requiring his attendance for cross examination. The statement refers to a call he received from Geeta at 11:17pm and a text message he sent at 11:51pm, and while the phone records were not annexed, they provide a relatively secure foundation for fixing the chronology. Mr Hamze said that Geeta called him at 11:17pm, that she was upset and wanted him to come over. He drove first to the apartment shared by Nisha, Geeta and the complainant, and then in an exchange of text messages at around 11:51pm was directed to Yuna's apartment. He drove back to the complainant's apartment with Geeta, where Nisha let them in. He said that "I saw that the lounge room was in a big mess and smelt bad. The bathroom was messy".
Mr Hamze said that he introduced himself to the appellant, who in turn said, indicating the mostly full bottle of tequila: "I took a drink from the bottle. I thought Geeta was not home. Geeta came and offered me tea. I said, 'No, how about you have a drink with me?' Geeta said, 'I like alcohol'. [The complainant] joined us and accepted our invitation for a drink Geeta brought the glasses. I was talking with [the complainant] for about - and I found our [the complainant] and my ex-wife have the same name. Geeta passed out on the couch. I said, 'Is Nisha a good girl to marry? Any man visit her at home?' [The complainant] went to her bedroom. I followed her to the bedroom and I was saying, 'Please, you are my sister-in-law, help me. Is Nisha a good girl to marry? Please, you are my sister-in-law. Is Nisha a good girl to marry? I come from the United States for her.' She said to me, 'Oh no, leave me. I don't know.' I walked out.'"
Mr Hamze said that Nisha then looked at the appellant and said "It's your mistake you followed the girl to the room". Mr Hamze and Geeta then returned to his house and slept until morning.

[10]

Count 2

The complainant described the events giving rise to the count for which the appellant was convicted as follows: "Q. What do you remember happening next? A. WITNESS: Next thing I remember is it was still dark and I knew I didn't have my pants on and-- Q. How did you know that? I'm sorry to interrupt you, but how did you know that? A. WITNESS: Because it felt that I didn't have my pants on and he had put my legs apart and he was kissing at my private part and I was pushing him away and I was telling him that I have a family and..(not transcribable)..and I was just pushing him, and-- Q. Do you need a break? A. WITNESS: No, it's fine. I can continue. HER HONOUR Q. Just take your time. A. WITNESS: I was just pushing, I was pushing him with my hands and I could feel his head, pushing him, and I, I didn't have the strength to get up or push him away as much as I do like normally we would do, and all I could do would just speak and I'm telling that I have a family and I'm here to study, and this and that. "I don't want to do this, I don't want to do this." Yeah. And he was saying-- CROWN PROSECUTOR Q. What was he saying, sorry? A. WITNESS: He was saying nothing. Q. When you say that you told him, "I have a family, I'm here to study, I don't want to do this," what were you talking about? A. WITNESS: I, I was talking about my family, that I'm here to do something, I'm here with a, like, intention, I'm here to study to do, make my future and things like that, and yeah. Q. What did you want him to do when you said those things? A. WITNESS: I just wanted him to stop and not do it. I said him, "I don't want to do this, don't do this to me." He just continuing actually, anyway, something like that, so. Q. Do you know how long he was kissing your private parts? Do you know how long that went for? A. WITNESS: As long as I remember, it was for a couple of minutes. Q. And-- A. WITNESS: --and then I, I blacked out or something. Q. When you woke up and saw him doing that, how were you feeling? Were you drink? Were you sick? A. WITNESS: I was still, I was feeling heavy-headed and I, I was feeling that my, as I said earlier, that I was feeling very light and I didn't, I feel like I didn't have any strength to push him away or even get up or do something. That's how I was physically feeling. Q. Apart from kissing your private parts, could you feel whether he was doing anything else with your private parts? A. WITNESS: No, I, the only thing I remember is he was just kissing my private parts which went for a couple of minutes, as I said, and then I can't, pass out."
The Crown returned to this towards the end of the examination in chief as follows: "Q. I'm moving forward to a later time when you said that you remember waking up and finding Nisha's boyfriend kissing your vagina. A. WITNESS: Yes. Q. Do you remember saying that? A. WITNESS: Yes, I do. Q. Do you remember him doing anything else with any other part of his body on any part of your body other than kissing your vagina? A. WITNESS: No, I only remember that he was kissing my vagina, and I was pushing his head away. HER HONOUR: Her actual evidence was that he was kissing her private parts. Q. When you say private parts, what were you meaning? When you were talking about your evidence that he was kissing your private parts? A. WITNESS: He was kissing my vagina."
Finally, on this topic, she gave the following evidence: Q. After you passed out and woke up again you said that he was - you saw him kissing your private parts? A. WITNESS: Yes, that's correct. Q. Her Honour asked you a question, "What do you mean by private parts", and you said, "Vagina"? A. WITNESS: Yeah, that's true. Q. Can you describe how he was kissing your vagina? A. WITNESS: He, he had his like full mouth at my vagina and he was rubbing his tongue. Q. Where was he rubbing his tongue? A. WITNESS: My, like at the centre of the vagina and. Q. Sorry, did you say, "And"? A. WITNESS: Yeah, and he was rubbing his tongue at the centre part and he was like, just kissing at the sides, like the side parts of the vagina. Q. Did you feel him do anything with his tongue? A. WITNESS: Yeah, I only felt like rubbing his tongue with, at the centre part. Q. When you say, "Centre part", what do you mean by that? A. WITNESS: The part we, like the middle of my vagina. Q. Inside or outside, or you don't remember? A. WITNESS: Actually, I don't remember inside. Q. Do you remember outside? A. WITNESS: Yes, I do remember outside, but not sure if he like, put his tongue inside but he was kissing outside."
There was no cross-examination on that specific incident. It will be seen that the complainant gave this evidence three times.

[11]

Count 4

The complainant described the events giving rise to count 4 as follows: "Q. What is the next thing you remember after that black out? A. WITNESS: The next thing I remember was he was keeping my legs apart and had his hand on like, my thighs and-- Q. Hands where? HER HONOUR: "Hands on my thighs". CROWN PROSECUTOR: Thank you your Honour. A. WITNESS: Yeah, and like he was keeping the hands on my thighs and keeping my legs apart and he was inserting his, that, in my vagina. CROWN PROSECUTOR Q. You said inserting "That"? A. WITNESS: His private part, his. Q. His private part you mean? A. WITNESS: Yeah, his. Q. Was he saying anything to you when he was doing that? A. WITNESS: No, I don't remember him saying anything to me, the only thing I remember is he was inserting his private inside me, inside my vagina. I was just..(not transcribable)..my way my way out. I was trying to, but I just didn't have the strength so I was just only talking that, "I didn't want to do this, stop it". Q. Is that what you said, "I don't want to do this"? A. WITNESS: Yeah I said, "I, I don't want to do this, just stop it", and I was-- telling about my family, yeah. Q. Was he, when he inserted his private part into your vagina was he moving or was he being still, do you remember? A. WITNESS: He was moving - Q. How was he moving? A. WITNESS: I know, it was dark in the room, there is no lights, but even in the dark I could see the shadows. He was moving, I could, I was, I could feel it as well. Q. Do you know how long this went for? A. WITNESS: As long as remember, it was, it went for a couple of minutes, like four or five minutes, and, and then I passed out again. Q. During that four or five minutes you've told us what you said, but did he say anything to you at all? A. WITNESS: I don't remember him saying anything. I was just telling him that "I don't want to do this, stop it". Q. When you passed out, or sorry did you say that you blacked out? A. WITNESS: Yes, yes, I blacked out. Q. When you blacked out had he stopped inserting his private part into you when you blacked out? A. WITNESS: No, I, no he was still inserting his private part and in the middle of it I blacked out. HER HONOUR Q. When you say "Private part", do you know the word for the private part? A. WITNESS: He was inserting his dick in my vagina. CROWN PROSECUTOR: Thank you your Honour."
There was specific cross-examination on this which appears not to have been fully captured in the transcript. The transcript discloses: "Q. you understand that what I'm suggesting to you is that Mr Shiv never put his penis inside of you. Do you agree with that or not? A. WITNESS: I don't agree.. (not transcribable).. remember-"
Neither side made anything of that incompletely reproduced part of the evidence.

[12]

Counts 5 and 6

The complainant testified that after she had blacked out, the next thing she remembered was hearing Geeta's friend Yuna speaking on the telephone. She said that she could not remember the exact words she used, but asked her "Yuna please help me. You are a girl as well. You can understand".
She said that the next thing she remembered was waking up and speaking with Nisha, apologising to her and saying that she had been raped. She gave the following evidence: "Q. Let's go back. Nisha, "What's wrong". Nisha said, "What's wrong, what happened to you"? A. WITNESS: Yeah, she said, "What happened, what's wrong. Did he put his dick in you". I said, "Yes". Q. You said, "I'm sorry Nisha, this will affect your studies"? A. WITNESS: Yeah, I said like, "This has happened" and-- Q. When you say, "This has happened", did you tell Nisha what had happened? A. WITNESS: No, I, in, in our language I just said that this has happened, which is. Q. You said "This has happened", what else did you say? A. WITNESS: And I was asking her to help me and she clearly asked me just to make sure, he, she asked me like, "Did..(not transcribable)..", I said, 'Yes, that's'-- HER HONOUR Q. Sorry I didn't hear that. Could you just repeat what she asked you. There was just a bit of static on the sound? A. WITNESS: Sorry, she like, clearly asked me, that's the thing I remember, she asked me, "Did he put his dick on the inside you? Did he rape you", and I said, "Yes, he did" - clearly remember that."
The complainant then gave evidence that she was lying in her bed, and that she could feel that her hair had been washed and that she could smell the smell of shampoo. She gave this evidence: "Q. Was Nisha's boyfriend in the room? A. WITNESS: Not at the first time when I woke up, but at the second time when I woke up again, he was there again, he was again lying to the left side of my, he was again lying to the left side of me, and he was trying to, he was trying, like, touching my body, and I was pushing him away, I was calling Nisha. He was just trying to touch me here and there and I just turned over the other side and then he, he was moving his, like, lower part of the body- Q. You were moving what part of your body? A. WITNESS: He was moving the lower part of the body, like, he was trying to, like, like when he was entering his dick inside my vagina, but he was doing the same movement, but it was not his dick - I couldn't feel it because I had my quilt on and he was doing it at my back, because I turned over to the other side, and he was doing the same, same movement to my bottom, and I was just calling, I called Nisha and Nisha came in after and then, and then, like, she said something to her boyfriend, and then he got up and he went outside the room. CROWN PROSECUTOR Q. You said that he was moving the lower part of his body against your body? A. WITNESS: Yeah, that's true, at my, like, at my bottom. Q. Sorry, at your where? A. WITNESS: At my buttocks. Q. At your buttocks, so you had your back towards him? A. WITNESS: Yes, that's true. Q. When he was doing that, could you feel anything? A. WITNESS: I could feel his lower part of the body but I don't remember if I felt his, if I felt his dick. Q. In that position, did he do anything else with you? A. WITNESS: No, he didn't. He was just doing the movement and then I called Nisha out and then Nisha came in and she said something to the, to her boyfriend, and then they went outside."

[13]

The appellant's evidence

The appellant gave evidence on the fourth day of the trial. His evidence in chief and cross-examination occupy some 50 pages.
The appellant said that he came to Australia on 9 June 2017 to see Nisha, thinking that Nisha might be his "potential partner". He explained that those words meant "I wanted to marry her". He was met by her at the airport. However, in the following days he found that she was not spending much time with him.
The appellant said that he returned to the apartment on 13 June 2017 after a day of sightseeing. He brought with him a bottle of tequila, because he wanted to show some appreciation to the people with whom he had been staying. He described drinking with the complainant and Geeta, and when they finished the bottle, booking an Uber to go to a bottle shop to buy another. The three caught a train home, where each was holding the other's hand. He then said that shortly after they returned to the apartment, the complainant went to the bathroom, and Geeta's eyes were closed and she had vomit on her.
He then said that the complainant told him (in Nepalese) "Why did you came to Australia from USA, it's very far. You shouldn't have come here to see Nisha" and that she held his hand, and the pair kissed, whilst fully clothed. He then said he started touching her vagina with his hand, and that she was kissing him back.
He denied having penile-vaginal intercourse with the complainant. He said that his digital penetration was for a very short time. He then gave this evidence: "Q. I've asked you whether you participated in penile vaginal intercourse, you know what that is, penis into vagina? A. Yeah, I know. Q. Did that happen? A. Never. Q. You know that there's an allegation that you used your tongue in or on [the complainant's] vagina, you that allegation? You heard that? A. I know that, but it never happened."
The appellant said that after he went to the bathroom and returned, he saw that the complainant was vomiting, and that he did not touch her after that. He saw Yuna, Mr Tandukar, Nisha and Mr Hamze arrive at the apartment. He said that Nisha told him to pack up his gear and go and that he booked a flight to leave the following morning. His examination in chief concluded: "Q. You've heard [the complainant's] evidence, haven't you? A. Yes, I have. Q. Do you understand how serious the allegations are? A. Yes, I do. Q. Did you intentionally try to get these two women drunk and sexually abuse one of them, or even two of them? A. No, never. Q. When you were in the bedroom with [the complainant], obviously, when she vomited you realised something was wrong, is that right? A. That's right. Q. Did you touch her sexually after you saw her vomit? A. No, I never touched her. Q. When you were, you say, kissing and touching her intimately, did you have any idea that she was seriously drunk or affected by the alcohol? A. No. Q. What was your assessment of her capacity to understand what was going on? A. She was pretty much aware. Q. Why do you say that? A. Because the way she was talking to me, the way she was kissing me, the way she was responding to me. Q. So I'll just take you through one more time. You say, do you, that the only sexual contact you had with [the complainant] was kissing? A. That's right. Q. And you touching her digitally in the vagina? A. That's right. Q. That's right? A. That's right. Q. You say, do you, that, without entering into a formal contract, you were of the impression that the way she was acting, that everything was all right, is that your evidence? A. That's right."
In cross-examination, the appellant accepted that the bottle of tequila with which he arrived at the apartment was unopened, and that he probably arrived at the apartment at around 8pm.
He accepted that after they returned, and Geeta had been unwell, and he and the complainant were in the bedroom, Yuna arrived, and took Geeta away with her to clean her up, leaving him with the complainant alone in the apartment for a short period (he estimated 12 to 15 minutes). He denied that he had left the complainant with her bra undone, her T-shirt pulled up and one leg outside her underwear.
He accepted that he called Nisha and asked her to come home and said "There's a lot of drama going on here".
There was the following exchange, based on Yuna's evidence: "Q. ... [D]o you remember saying to Yuna, "All I was doing in the bedroom was just talking to [the complainant] about Nisha"? A. I might have said that. Q. OK, that was a lie wasn't it? A. It, it wasn't a lie because I don't have to tell her exactly what was going inside the room. Q. No, I'm not saying you had to tell her, but that was a lie, wasn't it? A. What was a lie? Q. That all you were doing in the bedroom with [the complainant] was talking to her about Nisha? A. Well I cannot say it is a lie because I was talking about Nisha too. Q. But that's not all you were doing is it? A. Yeah, but as I said, I didn't have to explain what I was doing, particularly with [the complainant]. Q. Sir, I'm not suggesting you had to do anything. I'm saying that when you told Yuna, 'all I did was talk to [the complainant] about Nisha' that that is a lie? A. That's not a lie because I just talked to [the complainant] about Nisha. Q. So you didn't do anything with [the complainant] other than talk to her about Nisha? A. I never said that. What I said is that I did not have to say anybody else what I was doing with [the complainant]. Q. We're going ... A. And that was not a part of lie or truth. . - around in circles, sir, what I'm suggesting to you is that your evidence to this jury is that you had digital intercourse with [the complainant] in the bedroom? A. Yes, and I didn't have to tell anybody."
It is difficult to know whether that exchange reflected a wilful failure to attend to the question, or whether counsel and witness were somehow at cross-purposes as to the meaning of the word "lie". It is easy to see how the jury could have formed a poor impression of the appellant on the basis of that exchange.
The appellant was cross-examined on the basis that he had told Nisha that he thought she was unfaithful, that the pair got angry, and she told him to pack his things and go.
He was squarely confronted with the propositions that he knew that both Geeta and the complainant were drunk after they returned to the apartment with a second bottle of tequila, and that he assaulted the complainant in accordance with her evidence.
He was re-examined to the effect that the booking details on his return flight were those of his address in New York (with the implication that there was nothing furtive in his changing his flight details) and that he left because Nisha had told him to leave. He was also permitted to say that he appreciated that the complainant was drunk after he saw that she had vomited, but that he never got back onto the bed with her after making that assessment.
Doing the best one can with the transcript, the impression is that the complainant gave a clear description of counts 1-6, with uncertainties explicable to her giving evidence of events some three years earlier, and her being affected by alcohol at the time. There is no reason to doubt the accuracy of the trial judge's observation, made at the time of granting appeal bail, that "I did find that [the] complainant [was] credible and reliable".

[16]

Yuna

Yuna attended the apartment twice that evening. First, she arrived following a call from her friend Geeta, whom she took away with her. Secondly, she returned with her relative Mr Tandukar.
Yuna said that in June 2017 she was living with relatives a few minutes away from her friend Geeta. She had previously shared the same room with Geeta as the complainant (who had replaced her as Nisha's subtenant). In that way she knew Nisha, and through Nisha's online conversations with the appellant, she knew of him. Yuna said she had met the complainant once but did not know her personally.
Yuna said she received a call from Geeta, and then the appellant "just took the phone from Geeta away and he was ... inviting me to join the party which was happening in that house". She said that she called Geeta again but she did not pick up the phone. She then called Nisha and told her that Geeta was not picking up the phone and the appellant had said they were having a party. Eventually she did speak with Geeta who told her she needed help, and she went to the apartment. Yuna said that when she went into the bedroom shared by the complainant and Geeta, she saw the appellant "getting off - up from the bed". She said he was wearing knee length shorts, and she heard someone crying from the room. That was all that she said about the complainant and the appellant on her first visit that evening to the apartment. Yuna said she saw Geeta was substantially affected by alcohol, with vomit on her. She took her home and put her to bed.
She then returned to the apartment with Mr Tandukar where she saw the complainant on the mattress. She said: "I think her T-shirt was a bit up. Her T-shirt up - half of the up and when I - when I moved the - when I see the trouser or one side of the trouser and underpants also out and her bra also undo."
Yuna said that she helped the complainant to put on clothing on the lower half of her body. She then gave this evidence: "Q. Did you say anything to her? A. I ask her what happened and she told me that he force her and he inserted something into her vagina. Q. To the best of your memory, are they the words that she said to you? A. Yeah, I'm not quite sure about the words but I think, yeah, on my best memory, yeah, she said."
She asked the complainant who had taken her into that room and she replied that the appellant "he took me into the room and he forced me". She described Nisha returning to the apartment, and helping to shower the complainant, and the pair of them putting the complainant into clean clothes.
In cross-examination, Yuna was confronted with a statement she had made on 14 June 2017 that recorded Nisha taking off the complainant's bra and T-shirt so that she could have a shower. Yuna explained that that was a reference to the bra being undone. She was also asked about her evidence concerning what the complainant said about being penetrated, and gave this evidence: "Q. So he inserted something into her vagina and he forced her, that's what she said? A. Yeah, yeah, based on my memories I think she - sorry, not based on my memories I hear like she was saying but I'm don't exactly remember what to word what she said."

[22]

The evidence of spoken and written Nepalese

When reviewing the record of this prosecution, it is important steadily to bear in mind the limitations, which in the present case, are greater than in many criminal trials.
First and foremost, the jury saw and heard each witness give evidence, and of that the written transcript is a very imperfect account. That has a number of dimensions. None of the following is to be taken as a criticism of those tasked with attempting to transcribe what happens in court, where instances of parties dropping their voices, speaking away from microphones, speaking over and interrupting one another - all familiar aspects of human communication - are endemic.
Even native English speakers' words are not invariably captured in the transcript. For example, I suspect that the primary judge actually uttered more words when granting bail pending appeal than those recorded by the transcript: "I did find that complainant credible and reliable". The imperfection of that and other parts of the transcript is palpable. Sometimes the transcript records "untranscribable". Readers ought also to be conscious of the possibility that transcript errors can occur which are not obvious on the face of the transcript.
Even when words are accurately transcribed, much may be lost. One instance is plain from the conclusion of Mr Shiv's counsel's address to the jury, where he reminded them of Geeta's evidence concerning the Facebook Messenger conversation, the details of which are summarised below. He said this: "You might recall Geeta took 30 seconds to consider giving an answer and she said, 'Yeah, it's not about Mr Shiv here, it's about [the complainant] we're talking here' and the Crown says, 'is there anything in there that says something about acting like nothing happened? Do you see those words? No'. Counsel continued, referring to his own question which is reproduced above, and added "again you will recall Geeta hesitantly giving that answer which clearly is not consistent with the prosecution case and you could probably I'd suggest to you gather the perceived pressure that she seemed to be under…"
Thirty seconds is a very long time for a witness to pause, and many people are very poor judges of how long thirty seconds is. I think it is quite likely that the pause was not so long. Nonetheless, there is no reason to doubt that she was hesitant, so much so that it was remarkable and memorable. Such pauses are only rarely if at all captured by the transcript.
Such matters apply to the record of every trial. But the present trial had the complications from the fact that the most important witnesses were native speakers of Nepalese, and the conversations which took place in 2017 of which they were giving evidence in 2020 for the most part took place in Nepalese.
The witnesses seem to have been of varying degrees of competence in English. All gave their evidence in English, including giving English translations of the words they said they recalled hearing (notably, the complainant's words of protest). That said, neither this court on appeal, nor the jury at trial, had any way of assessing how accurate the lay translations of the Nepalese words were.
There are also the social media messages. It can be very difficult to capture the tone and nuance of such messages, especially by outsiders to the particular social milieu, even when they are in English. As indicated above, the messages in this case were mostly in Nepalese. The jury asked for a translation of the Facebook Messenger conversation immediately after that evidence had been given and, in their absence, the Crown advised her Honour that the translation that had been obtained "is inaccurate on both the defence case and the Crown case". I return to this below.

[24]

The Facebook Messenger message

Geeta was asked in some detail about a Facebook Messenger message she sent to Yuna.
One source of the dispute was that three of the words were partially obscured by what appears to be the flashlight of the camera. That made it impossible to say with certainty whether the word in the message was "CHHE" or "CHAINE". The message in the form seen by the jury was as follows:
The trial judge received evidence on the voir dire as follows: "Q. Well there's a word in the second line, the second last word that has a bit of a white smudge on it which you can't read, it starts with a CH? A. Yeah, I can't read it. Q. Do your best without knowing what that word is? A. That makes a lot of difference there. I mean, if that means C-H-H-E it means that happened. If that means C-H-A-I-N-E it means that didn't happen. Q. So, in other words, are you saying that if it's C-H-H-[E] A. Yeah Q. It happened? A. Yeah Q. It happened or it didn't happen? A. It happened. And if its C-H-A-I-N-E that means it didn't happen Q. Can you read out the two versions, that might be helpful? A. Yeah, so if it was C-H-H-E that means "when Yuna and other guy went back to the apartment, she said [the complainant] said to Yuna that something happened". And then if it was C-H-A-I-N-E that means [the complainant] told Yuna that nothing happened. So that's what the text is all about."
The matter continued, it must be said somewhat inconclusively, with the witness apparently struggling to provide meanings of individual words as opposed to their effect, and objection being taken to inferences being drawn from the appearance of the text messages as to whether the partially obscured word was "CHHE" or "CHAINE". None of this was explained to the members of the jury, who must have been quite mystified by this.
Geeta gave evidence concerning the partly obscured text message twice in the presence of the jury. First she said that the message said, "when, when somebody asked you what happened, then you said 'nothing happened'". Later she explained: "So this message I was trying to explain [to] her that what Yuna told me when she came back from our apartment that time I was telling [the complainant] that when Yuna and his brother went to the apartment to ask [the complainant] that if she's alright, at that time she said she just talk like nothing happened. That's what I was telling her."
In cross-examination, she confirmed that, relevant to the Facebook message translated above, she "didn't actually talk to [the complainant]" and that "in fact she got contacted by Yuna who got contacted by [the complainant]".
Although there was, apparently, a formal translation of the Facebook messages available, it was contentious, and (in the absence of the jury) counsel for the defence told her Honour "as far as interpreting the Nepalese language and there are issues with gender, he or she, that's clearly an issue in the messages". There is no reason to doubt that that statement reflected his instructions.
In the presence of the jury, Geeta was taken to the message and was asked this: "Q. is there anything in there that says something about acting like nothing happened? Do you see those words there? A. No"
In further cross-examination, the defence asked Geeta two questions: "Q. Just to clarify all that, this is all about what you got told by Yuna, correct? A. Yeah Q. It's about [the complainant] telling Yuna in your message that when Yuna and her brother were talking to [the complainant] that [the complainant] told Yuna and her brother, in effect, in your words, in that message, "nothing happened", correct? A. Yeah, that's- yeah"
It is very difficult to make sense of this even with the benefit of what occurred on the voir dire. The jury asked for a translation but (understandably in light of the above) none was provided.

[25]

Applicable legal principles

At the commencement of her submissions, counsel for the appellant contended that the jury's verdicts of not guilty entailed that the complainant's evidence was not capable of satisfying the criminal standard. This submission was maintained, notwithstanding questioning from the Bench. That is not the law.
The jury's verdicts of not guilty did not entail that the complainant's evidence was incapable of establishing guilt. It certainly does not necessarily imply that she was disbelieved, or that her evidence lacked reliability. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, "[a] verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility". Even in a case which turns upon the jury being satisfied to the criminal standard of the complainant's uncorroborated evidence, a conviction on one count accompanied by an acquittal on another does not of itself inevitably demonstrate inconsistency: see Ganiji v R [2019] NSWCA 208 at [13] and Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [9].
The Court's approach in cases such as this is clear. It is necessary to have careful regard to the surrounding circumstances in order to determine whether there was a rational basis on which it was open to the jury to accept the complainant with respect to one aspect of the complainant's evidence, but not with respect to other aspects.
In Roos v R [2019] NSWCCA 67 at [42]-[45], Gleeson JA summarised the principles applicable to review of a conviction on the basis of inconsistency with other verdicts as follows: "The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant: '… must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). It is also to be kept in mind that a verdict of 'not guilty' does not necessarily imply any 'want of confidence' in the complainant but 'may simply reflect the cautious approach to the discharge of a heavy responsibility': MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). As Spigelman CJ had earlier remarked in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]: 'In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.' There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: 'In determining whether convictions are unreasonable ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis.' Simpson J continued at [130]: 'Before … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.' See also: Jafary v R [2018] NSWCCA 243 at [37] (Leeming JA and Walton and Wilson JJ); Walker v R [2019] NSWCCA 4 at [10] (Hoeben CJ at CL, Rothman and Price JJ agreeing)."
That summary of principle was more recently applied in White v R [2019] NSWCCA 168 at [104] by R A Hulme J, in Nguyen v R [2021] NSWCCA 85 at [62] by Wilson J, and in Dellow v R [2020] NSWCCA 301 at [21].
The evidence summarised above makes this a clear case where it was open to the jury to convict at least on counts 2 and 4. The complainant gave clear evidence, reproduced above. Appreciating as I do the limitations of the transcript, it may be added that when acceding to Mr Shiv's application for appeal bail, the primary judge stated that "I did find that [the] complainant [was] credible and reliable". There was ample basis for the jury to conclude, to the criminal standard, that the complainant was incapable of giving consent, to Mr Shiv's knowledge, to any sexual conduct. The facts that the complainant was found, later that evening, partly unclothed, and with vomit on her, is consistent with counts 2 and 4. There was almost immediate complaint that the complainant had been raped (although there was no immediate account of cunnilingus) and Mr Shiv's very rapid departure from the country is supportive of a consciousness of guilt. In short, had the jury convicted on counts 2 and 4 an appeal that the verdict was unreasonable would be hopeless.
This appeal raises quite different issues from a case where it is said the conviction is unreasonable because the evidence was incapable of sustaining a guilty verdict. The ultimate question is whether the guilty verdict can be permitted to stand, in light of the not guilty verdicts on all other counts that were left to the jury. As Simpson J said in TK, in the portion reproduced above which has been applied by this Court on numerous occasions, the focus is on the acquittals, and whether there is a rational explanation for them, or alternatively, whether "the acquittals are attributable only, or principally, to doubt about the complainant's credibility".

[29]

The irreconcilability of the guilty verdict with the not guilty verdict on count 4

So far as the transcript discloses, there was nothing uncertain or equivocal about the complainant's testimony on counts 2 and 4. She said unambiguously, "He was kissing my vagina" and "He was inserting his dick in my vagina".
It is true that the complainant testified that the cunnilingus occurred three times in evidence in chief, but the fact that the Crown led this from her three times does not add to the strength or cogency of this allegation.
This was not a case, such as that instanced in Markuleski in the passage reproduced above in Roos, where the assaults occurred over a lengthy period of time, as is not uncommonly seen in this Court. According to the complainant, count 2 was followed by count 4 in the same bedroom minutes afterwards.
Not uncommonly, different verdicts may be reconciled because there is other evidence which supports or corroborates the complainant's evidence in respect of other charges to a greater degree. Examples may be seen in Youkhanis v R [2014] NSWCCA 220 at [96] and Kurdi v R [2011] NSWCCA 179 at [100]-[112]. But it is quite clear that, on its face, count 4 was the strongest aspect of the Crown case. It was not merely that there was unequivocal testimonial evidence from the complainant. There was also repeated, almost immediate, evidence of her complaint. She wrote to Geeta (in Nepalese) saying "that guy raped me, geeta". Mr Tandukar gave evidence that when he asked the complainant that evening whether the appellant had raped her, she said "he did". The complainant's handwritten statement made the following day explicitly states that there was non-consensual penile-vaginal intercourse, and is silent about cunnilingus. Her social media message to a friend said "He raped me yar".
In accordance with TK v R, it is necessary to inquire whether there exists any rational explanation for the acquittal on count 4 other than doubts about the complainant's credibility. This Court must perform that task subject to the limitations of the record, which in the present case were very real.
The difficulties confronting this Court in assessing precisely what occurred at this trial are greater than many. There were the divergent accounts from the witnesses as to their recollections, three years after the event, of what they saw and heard in the apartment that evening. The fact that they mostly spoke English as a second language, and were translating the effect of what had originally been said in Nepalese adds to the difficulties. It is difficult to assess how the jury would have regarded the absence of a translation of the social media messages, and in particular the bizarrely unfortunate obscurity of a critical word in one of the text messages. It is plain that the transcript is an imperfect record of the trial, such that it is appreciably harder to assess the distinctions the jury may have drawn between counts 2 and 4.
When the matters which do not differentiate between counts 2 and 4 are put to one side (such as the appellant's accelerated departure from the country), one is left with forensic evidence, in particular the absence of semen when a test for semen was carried out, and the failure to carry out a test for saliva. The Crown submitted that there was no support to be found in the forensic evidence with respect to the allegation of penile-vaginal intercourse, something which was at the forefront of the defence address to the jury. The Crown also pointed to the defence reliance on the absence of any genital injury (although the defence had, properly, acknowledged that the absence of injury did not necessarily indicate an absence of sexual assault).
But the absence of the detection of semen when forensic testing for semen was carried out does not stand in the way of the jury finding the appellant guilty on count 4. True it is that the presence of semen in the swabs taken from the complainant would have been very powerful corroboration of count 4. But it would be quite wrong to conclude that this count was not made out because of the negative result of the forensic examination. There are many reasons why semen may not have been detected even if penile-vaginal intercourse had occurred.
In short, the absence of forensic evidence which would powerfully strengthen the Crown case on count 4 does not somehow elevate the strength of the Crown case on count 2 so as to explain the different verdicts.
Similarly, as earlier noted, I do not accept the appellant's submission that there was any prejudice or mischief in reliance being placed on the finding of DNA which was consistent with cunnilingus but which was also consistent with digital penetration. But nor do I accept that the DNA evidence which is consistent with count 2 somehow elevated that aspect of the Crown case. The fact that DNA likely from the appellant was found on a vulval swab was also consistent with digital penetration and with other modes of transfer. I do not regard this consideration as elevating the strength of the case on count 2 such as to explain the guilty verdict. The forensic findings were also capable of supporting count 4, so that it cannot be said that the DNA evidence was capable of explaining or reconciling the differing verdicts.
The Crown also referred to Yuna's evidence that the appellant inserted "something" into the complainant's vagina, and the possibility that the complainant was confused as to the two forms of penetration. But once again, there is the large weight of other contemporaneous evidence by the complainant that she was certain that there had been penile-vaginal intercourse. That is how her repeated use of "rape" to her friends is to be understood, in addition to the unequivocal statements in her original complaint at the hospital.
I have concluded that it is not possible on the face of the record to identify an explanation for the acquittal on count 4 and the conviction on count 2. The guilty verdict on count 2 is unreasonable because it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on count 2 while being unwilling to convict him on count 4.
I am strengthened in that conclusion by the fact that the appellant admitted to digital penetration of the complainant's vagina. He said this was consensual. But it was amply open to the jury to conclude to the criminal standard that his penetration of the complainant was non-consensual in light of the alcohol she had consumed, and that this was known to the appellant. If the jury reached that conclusion, then the jury had before them a man who stood accused of six serious counts of sexual assault, who had admitted one uncharged offence of sexual intercourse without consent. Of course, the jury was told that merely if they rejected the appellant's evidence, the burden nonetheless lay upon the Crown to prove his guilt beyond reasonable doubt and that even if they did not believe he was telling the truth, only if the Crown established every element of the case beyond reasonable doubt could they convict. Even so, there was a risk, as the appellant submitted, of the jury producing a guilty verdict based on their conclusion that he had committed an uncharged crime.
There is a further consideration, which I mention in the interests of transparency, but place no reliance upon. The jury never sought to reconcile their not guilty verdict on count 4 with their guilty verdict on count 2. That is because they had not reached a verdict on count 4 at the time their guilty verdict on count 2 was announced and accepted.
It is open to this Court to have regard to what was disclosed in open Court as to the jury's deliberations. Burrell v R [2009] NSWCCA 193 is a case where this Court's approach on appeal turned on an examination of the process of the jury's determinations, as reflected in a note: see at [147]-[150]. The jury's deliberations are private, but that does not stand in the way of this Court having regard to the record insofar as it records that the guilty verdict on count 2 was reached before the jury had concluded that the appellant was not guilty on count 4.
On one view of the matter, the appellant was entitled to the benefit of a jury which, before convicting him on count 2, bore in mind the fact that the Crown had not discharged its burden in relation to count 4. That is the point of the Markuleski direction given by the trial judge. That did not occur.
This was the second of two matters raised in a letter from my Associate to the parties after judgment was reserved (the first was the reference on the form completed at the hospital referred to at [24(10)] above), as follows: "The second concerns the acceptance of the guilty verdict on count 2 in advance of the not guilty verdict on count 4. Was the appellant entitled to the benefit of the jury bringing to mind the fact that the jury did not accept that the complainant was reliable at least in relation to count 4 when determining whether he was guilty on count 2? If so, did the way in which the verdicts were taken impact upon that entitlement?"
In response, counsel for the appellant advised that "[n]o complaint is advanced arising from the way in which the verdicts were taken". Accordingly, I take that point no further.

[30]

Conclusion and orders

After reviewing the entirety of the evidence at trial, I am unable to reconcile the guilty verdict on count 2 with the not guilty verdict on count 4. There is no way this Court can distinguish the complainant's unequivocal evidence that the appellant was "kissing my vagina" from her unequivocal evidence that he was "inserting his dick in my vagina" shortly thereafter. Remarkably, the Crown case in support of count 4 was stronger than for count 2. In particular, the near immediate evidence of complaint was of count 4 rather than count 2. And there is a basis for inferring that the guilty verdict reflected the jury's conclusion that the appellant was guilty of an uncharged sexual assault upon the same complainant that evening.
It follows that there should be a grant of leave, the appeal allowed, the conviction on count 2 quashed, and in lieu thereof, an acquittal on count 2 entered.
HAMILL J: I have the considerable advantage of having read the reasons for judgment of Leeming JA. I agree with the orders proposed by the Presiding Judge and with his Honour's analysis of the evidence and relevant legal principles.
I accept the applicant's submission that the current case falls into what was described by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35 as a "residue of cases" where mixed jury verdicts are unable to be reconciled and fail the test of logic and reasonableness. As their Honours emphasised: "It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'"
The complainant's evidence upon which count 4 was based (penile-vaginal penetration) was clear and unambiguous. Unlike the allegation in count 2 (cunnilingus) the allegation in count 4 received support in the evidence of the complaints made a short time after the relevant events. As Leeming JA demonstrates, there was nothing in the evidence that can explain how the jury, acting logically and reasonably, reached satisfaction beyond reasonable doubt in relation to one of those allegations but not the other.
The only explanation for the acquittal on count 4 was that the jury entertained a reasonable doubt about the credibility and/or reliability of complainant in respect of that allegation. Nothing in the evidence provided further support for the allegation of cunnilingus and the jury's unanimous doubt in relation to the proof of count 4, "whatever the explanation may be", [1] ought also to have attached to the allegation in count 2.
I also agree that ground 2 cannot be sustained in view of the absence of an application for a stronger direction by counsel appearing at trial. As with ground 1, I can add little to the reasons articulated by Leeming JA. However, it is useful to recall the words of Spigelman CJ in Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 (at [188] - [191]): "188. It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally. 189. On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. 190. Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts. 191. The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
The direction given in the present case could have been more forceful. However, in the absence of complaint at the trial, I am unable to accept that this ground should be upheld. I agree that the leave to rely on this ground should be refused.
LONERGAN J: I have had the considerable advantage of reading the judgment of Leeming JA in draft, as well as the additional observations of Hamill J. I respectfully agree with their analyses of the evidence, the principles and the outcome of this appeal.
I agree that ground 2 cannot be sustained for the reasons set out by Hamill J at [148] and I agree that leave to appeal to rely on ground 2 should be refused.
In respect of ground 1, having carried out my own separate analysis of the evidence, I agree with both Leeming JA and Hamill J that the acquittal on count 4 must have been on the basis that the jury held a reasonable doubt about the reliability and/or perhaps credibility of the complainant in respect of that allegation, occurring on the complainant's account, very soon after the cunnilingus which comprised count 2.
I too have concluded that the guilty verdict on count 2 and the not guilty verdict on count 4 cannot be reconciled for the reasons well-articulated by Leeming JA and Hamill J.
I agree with the orders proposed by Leeming JA.

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