//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWCCA 34
Court of Criminal Appeal (NSW)
2025-03-12
Garling J at [1]Chen J at [3]Sweeney J at [141]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Singh v R [2025] NSWCCA 34
Hearing dates: 17 February 2025
Date of orders: 12 March 2025
Decision date: 12 March 2025
Before: Garling J at [1]
Chen J at [3]
Sweeney J at [141]
Decision: (1) Grant leave to the applicant to appeal against his conviction.
(2) Dismiss the appeal.
Catchwords: CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Offence of aggravated indecent assault – Where complainant accepted difficulties in memory and recall of events – Whether internal discrepancies and inconsistencies present in complainant’s evidence – Whether complainant’s memories of sexual intercourse and lack of consent reliable – Whether complainant credible – Strong corroboration of complainant’s evidence – Inconsistencies immaterial to credibility and reliability – Jury’s verdict reasonable – Leave to appeal granted – Appeal dismissed
CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Where complaint witness not called by Crown – Where trial judge did not give direction after brief enquiry from counsel – Where Crown opening indicated that witness would not be called – Whether Mahmood direction required – No expectation for Crown to call complaint witness – Complaint witness not essential or material – Absence of Mahmood direction to the benefit of the applicant’s submission to the jury – No requirement for Mahmood direction – No miscarriage of justice – Leave to appeal granted – Appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Dansie v The Queen (2022) 274 CLR 651
De Silva v The Queen (2019) 268 CLR 57
Decision Restricted [2024] NSWCCA 81
Fantakis v R [2023] NSWCCA 3
HCF v The Queen [2023] HCA 35
Lee v R [2023] NSWCCA 203
M v The Queen (1994) 181 CLR 487
Mahmood v Western Australia (2008) 232 CLR 397
Quinn v R [2023] NSWCCA 229
Reed v R [2006] NSWCCA 314
The Queen v Baden-Clay (2016) 258 CLR 308
The Queen v Hillier (2007) 228 CLR 618
VP v R [2021] NSWCCA 11
Z (a pseudonym) v R [2022] NSWCCA 8
Zhou v The Queen [2021] NSWCCA 278
Category: Principal judgment
Parties: Karanbir Singh (Applicant)
Rex (Respondent)
Representation: Counsel:
M Licha (Applicant)
S Lind (Respondent)
Solicitors:
Pannu Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00108543
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of the complainant or any matter that could identify them is prohibited.
[This headnote is not to be read as part of the judgment]
The applicant, Karanbir Singh, stood trial in the District Court for one count of aggravated sexual intercourse without consent alleged to have been committed on or about 11 April 2022, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The trial proceeded before his Honour Judge Grant (‘the trial judge’) and a jury between 5 and 9 June 2023, on which date the jury returned a verdict of guilty. Following his conviction, the applicant was sentenced by the trial judge on 28 August 2023 to a term of imprisonment of 6 years, with a non-parole period of 4 years.
By way of background, the applicant and complainant had met on a dating site and subsequently arranged to meet in person on 10 April 2022. The complainant’s evidence was that, late on the evening of 10 April 2022, the applicant drove her to his home where they consumed a 750ml bottle of Vodka together and briefly kissed. The complainant’s next memory was of her waking up on the applicant’s bed, lying naked on her back and with the applicant naked on top of her with his penis inside her vagina. The complainant, upon becoming aware of the applicant having sexual intercourse with her, told the applicant to “stop”.
At trial, the applicant’s case was that the sexual intercourse between the applicant and complainant simply did not occur. He sought to rely upon a version of events that he had given to police – namely, that sexual intercourse did not occur but that the complainant had attempted to force the applicant to have intercourse with her. The applicant submitted to the jury that there was doubt as to the complainant’s credibility and the reliability of her evidence in part because her recollection of events was “patchy” and suggested to be “poor”.
During the course of the trial, the Crown led direct evidence from the complainant, complaint evidence from her parents, her workplace supervisor and DNA evidence from the doctor who medically examined her and reported on a number of physical findings consistent with the applicant sustaining injuries, including to her labia minora, in the events that occurred whilst at the applicant’s home. In the Crown opening, it was noted that the Crown was not seeking to call a security guard, known as Polly, as a witness due to her wishes to not become involved in the matter. Following the trial judge’s summing up to the jury, the trial judge indicated to the parties that he declined to make a Mahmood direction following a brief enquiry from the applicant.
By notice of appeal filed 19 August 2024, the applicant seeks leave to appeal against his conviction and raises the following grounds of appeal:
The Court held (per Chen J, Garling and Sweeney JJ agreeing), granting leave to appeal and dismissing the appeal:
As to ground 1:
Decision Restricted [2024] NSWCCA 81 applied.
Reed v R [2006] NSWCCA 314; Lee v R [2023] NSWCCA 203; Z (a pseudonym) v R [2022] NSWCCA 8 applied.
As to ground 2:
VP v R [2021] NSWCCA 11; Fantakis v R [2023] NSWCCA 3 applied.
GARLING J: I agree with the orders proposed by Chen J and with His Honour’s reasons.
I have considered and assessed the whole of the evidence at the trial. In my opinion, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. I am of the further opinion, that the verdict of guilty was the only rational verdict for the jury to reach having regard to the strength of the evidence in the Crown case. I do not have any doubt at all of the applicant’s guilt of the offence.
CHEN J: By indictment dated 31 March 2023, Karanbir Singh (‘the applicant’) was charged with having non-consensual sexual intercourse with the complainant, on 11 April 2022, in circumstances of aggravation, namely, that at the time of the offence, the applicant did recklessly inflict actual bodily harm upon the complainant – an offence contrary to s 61J(1) of the Crimes Act 1900 (NSW).
The applicant entered a plea of not guilty to the charge.
On 9 June 2023, the applicant, following a trial by jury before Grant DCJ, was found guilty.
The applicant was sentenced by Grant DCJ on 28 August 2023. His Honour imposed an aggregate sentence of six years imprisonment, with a non-parole period of four years imprisonment, to commence on 9 June 2023, and expiring on 8 June 2029. The applicant is eligible for parole on 8 June 2027.
By notice of appeal filed 19 August 2024, the applicant appeals against his conviction only, raising two grounds:
that the verdict of guilty was unreasonable and “cannot be supported based on evidence” (ground 1); and,
that a “miscarriage of justice occurred because the trial judge refused to give a Mahmoud [sic] direction” (ground 2).
The applicant’s written submissions referred to ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) as the basis for the appeal. However, neither the applicant’s written submissions, nor oral ones, sought to identify a question of law alone in relation to any of the grounds and, thus, whether the appeal is as of right (s 5(1)(a) of the Criminal Appeal Act) or by leave (s 5(1)(b) of the Criminal Appeal Act).
In my view neither the first ground of appeal, which engages the first limb of s 6(1) of the Criminal Appeal Act, nor the second ground of appeal, which by its terms engages the third limb of s 6(1) of the Criminal Appeal Act, raise any “question of law alone”. Accordingly, each ground of appeal requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act.
Although I consider that leave to appeal should be granted, the appeal should be dismissed. My reasons for so concluding follow.
On 4 April 2022, the applicant and the complainant, who both lived in Albury, New South Wales, met on a social media dating site “Plenty of Fish”. It was not in issue at trial that the username of the applicant on that site was “Gagan”. The applicant and complainant began communicating over that platform.
On that same day, the complainant received a SnapChat friend request from the applicant, which the complainant accepted, and they began communicating in that way. The complainant saved these communications and screenshots of them became Exhibit 1.
Some few days after they met on the dating site, they arranged to meet on 10 April 2022. The applicant, who was a taxi driver, agreed to pick the complainant up from her house, where she lived with her father.
On 10 April 2022, and between 9:20pm and 9:30pm, the applicant arrived at the complainant’s house, driving a white taxi. When the applicant arrived, the complainant told the applicant that she had to be home by midnight, as she was required to work the next day. When the complainant got into the taxi, the complainant sent a text message to a friend, a work colleague called “Joel”, advising him of her plans with the applicant: this was pre-arranged so that Joel could monitor her location on SnapChat maps.
Initially, the applicant drove the complainant to Hume Weir. Whilst at that location, the applicant received a telephone call which he answered – speaking in a language other than English, that the complainant later described as “Indian”. After the call ended, the applicant told the complainant that he needed to collect a friend from Wodonga train station. They drove there, and the applicant collected his friend. He dropped the friend at a house in South Albury.
The applicant drove off, heading towards Howlong. At some point, he pulled over and told the complainant that he did not know where he was going: the complainant told the applicant that they were driving towards Howlong, following which the applicant turned the taxi around and drove back to the house where they had dropped his friend. This was where the applicant resided with that friend. They arrived there at around 11pm, and the complainant said to the applicant that she “[n]eed[ed] to be home soon”.
After the applicant and complainant got out of the car, they each had a cigarette outside the front of the house. When they finished smoking, the applicant kissed the complainant for “about five minutes”. After this, the applicant and complainant went inside the house and, as they did so, the applicant closed and locked the front door behind them.
When inside the house, the applicant “showed [her] the kitchen”. There was some butter chicken on the stove, and the complainant had a “mouthful” of it. Whilst in the kitchen there was a discussion between them about the complainant’s “favourite drink” to which she said that it was vodka and orange juice: the applicant indicated that he only had “Coke and Vodka”. The complainant said “[o]kay”, and she told him that she only wanted one drink.
The complainant and the applicant then went into the applicant’s bedroom. The applicant then left the bedroom and, when he returned, he was carrying an unopened 750 ml bottle of vodka, Coca-Cola and two “whiskey glasses”.
The complainant finished her drink and went to the bathroom. When she was using the toilet, the applicant came into the bathroom and “used the shower as a toilet”. When the complainant went back to the applicant’s bedroom, she observed that her glass “was full”. The applicant asked her “to finish… [her] drink and [she] told him [she] did”. The applicant then said: “[a]re you calling me a liar?”, to which the complainant said: “[n]o”. The complainant described this second drink as being “[r]eally, really strong”, which she drank. The applicant poured the complainant another drink which the complainant described as “[r]eally strong”. The complainant could not recall how many more drinks she had after the second one, but observed that they had consumed the entirety of the 750 ml bottle of vodka.
After they had consumed the bottle of vodka, the applicant and complainant “talked”, and he then kissed her and took off her bra – which she “allowed”. The complainant did not recall the applicant removing any more of her clothing, nor the applicant removing any of his.
The complainant next remembered “waking up” on the applicant’s bed: she was lying naked on her back, and the applicant was naked on top of her with his penis inside her vagina. The complainant then gave the following evidence:
Q. Did you say anything to him when you woke up and realised that that’s what was happening to you?
A. Yes.
Q. What did you say?
A. “Stop.”
Q. Say anything else?
A. “It hurts. .”
Q. Did he say anything to you?
A. No.
Q. Did he stop?
A. No.
Q. How much longer did he persist or continue, I should say, with his penis inside your vagina?
A. I can’t remember.
Q. At some point, did he stop?
A. Yes.
Q. Do you know what caused him to stop?
A. No.
Q. When he stopped, did he withdraw his penis from your vagina?
A. Yes.
Q. Did you see what he did after that?
A. Yes.
Q. What did he do?
A. He put my - my hand on his penis.
Q. Did you do that voluntarily?
A. No.
Q. How long was your hand on his penis?
A. A couple of seconds.
Q. Who caused your hand to come off his penis?
A. He did.
Q. Did he speak to you at all while he was doing that with your hand?
A. No.
The complainant’s evidence was that she did not “agree to have sexual intercourse” with the applicant. The complainant denied “voluntarily” touching the applicant’s penis in any way.
The complainant was cross-examined about this evidence, which included the following:
Q. Now, ma’am, when you were asked questions by the prosecutor - now, I’m not going to go into great detail right now, but just a little bit of detail - you say you “blacked out” and when you woke up you “were naked”, the [applicant] “was naked”, and he was “on top” of you?
A. Yes.
Q. And you say he was “having sexual intercourse” with you where you told him to “stop”?
A. Yes.
Q. And he “didn’t stop”, you say?
A. Yes.
Q. Now, you said he “withdrew his penis”, that’s correct?
A. Yeah.
Q. And then you said that he “caused” your “hand to touch his penis”?
A. Yes.
Q. Then you were asked this question, “Q. What’s your next memory? A. In the car.” Do you remember that evidence, ma’am?
A. Yes.
Q. So you wake up, he’s on top of you, you say “no”, he doesn’t stop, he withdraws his penis, then he presumably grabs your arm and puts your hand on his penis. That’s correct?
A. Yes.
The complainant’s next recollection was being in the front passenger seat of the applicant’s car. The complainant was fully clothed, although she had no recollection of putting her clothes on. Whilst in the car, the applicant “forced chocolate” into the complainant’s mouth with his hand. The complainant had no “other memory of what happened in the car” or how she got home. The next recollection was “[w]aking up on the front lawn” of her home, and it took her “a while to realise” where she was.
The complainant, believing she was running late for work (“I didn’t know what was happening”), contacted her “boss” Karene Bye at around 6:05am. Ms Bye described the complainant as “very erratic and very upset” and “just really emotional, and she was crying and she was very upset that day - that morning”. Whilst on the telephone to her supervisor, the applicant “came back around to check to see if [the complainant] was okay”, at which time the complainant “burst […] into tears” and she “asked him to leave”.
At this time, the complainant’s father came out of the house, but she did not tell her father what had happened because she “didn’t – at that time – didn’t know what happened”. Her father drove her to West End Plaza, where she worked, and whilst driving the complainant saw the applicant’s taxi “[p]arked down the road”.
When the complainant arrived at West End Plaza “about 6.15am”, she was, according to Ms Bye, “very emotional. She was crying, and didn’t seem very coherent”. Ms Bye took the complainant to Ms Bye’s office and “sat her down”, so Ms Bye “could continue unlocking the shopping centre”. The complainant told Ms Bye that “she had felt really used that night”, she showed Ms Bye “some bite marks and that on her body” and she said that “the male she was with had done some stuff to her inappropriately”. When cross-examined, Ms Bye said that the “bite marks” were on “one of her shoulders”. The complainant also told Ms Bye that “he had had sex with her. She didn’t want to have sex with him. And that she was – she felt – she felt like she had been completely used”. This conversation occurred whilst they were walking towards Ms Bye’s office. Ms Bye’s evidence was that the complainant told her that her “memory was patchy”.
After unlocking the plaza, Ms Bye returned to her office and observed that the complainant was asleep. She tried to wake her up “for a good couple of minutes”, but as the complainant was sleeping, left the complainant in her office and went about her work. As she did so, the complainant’s mother “arrived on site”. Later, Ms Bye saw the complainant’s mother take her home.
The complainant’s next recollection, following her arrival at West End Plaza, was “waking up” in the cleaner’s office. The complainant’s father had made contact with the complainant’s mother (or ‘PS’), who attempted, unsuccessfully, to make telephone contact with the complainant. The complainant’s mother was “worried about her”, so she went to West End Plaza to find her. When she arrived, she found Ms Bye, and was taken to the office where the complainant was. When she entered the office, she saw the complainant “was slumped over the desk that they have in there, with a hoodie over her head”: the complainant did not, initially, acknowledge her but when she did she “stood up, and burst into tears”. PS then gave the following evidence:
Q. Did she say something to you?
A. I said, “talk to me, chook, what’s wrong?” She said, “He used and abused me, mum”.
Q. At that point, did you know who she was talking about?
A. No, I had no idea.
Q. Did you say anything further to her?
A. I said, “Do you want me to take you to the police station?”
Q. And did she say something?
A. I think she answered, it was like, “No, mum. No, mum. Don’t want to talk about it.” She just completely shut down and continued to cry.
Q. Did she ask you to take her somewhere?
A. She wanted me to take her home at that stage.
The complainant’s evidence was that she did not tell her mother what had happened because “at that stage, [she] didn’t know what happened”.
When the complainant and PS were leaving the plaza, PS noticed that the complainant “was pretty bruised, the face…she had bruises on her mouth. On the lip”. A “little later” the complainant showed PS her neck and chest, and PS saw “[b]ruises”. As they were departing the plaza, PS observed that the complainant “was struggling to walk. She was really off-centred”.
The complainant did not recall leaving West End Plaza, and her next recollection was waking up in her bed, wearing the “same clothes [she] wore the night before” at about 11am. After she woke up, the complainant had a shower, at which time she noticed a range of injuries to her body: she “had a bruise on [her] boob” and a bruise on her “left shoulder”. She also described that her “hips and vagina” were “sore” and observed that there was discharge of blood from her vagina. The complainant was unable to locate the underwear she was wearing the previous evening, and her tongue and nose piercings were also missing.
After dropping the complainant home, PS left but returned at about 11am. She gave the following evidence about what she observed and what occurred:
Q. When you went into the house, what did you see?
A. She was sitting on the lounge chair. She was still crying. I said, “Just talk to me, chook,” and she just shut down. She, I think, maybe, yeah, she was more bruised at that time.
Q. Where abouts?
A. More of her face. And I think she showed me both her boobs, and her chest, and her shoulder.
Q. Was [the complainant] working at that period of time?
A. I think she had a shift that day.
Q. Did she say anything to you about that?
A. “I just need to go to work.” I think she just shut down and said, “I just need to go to work”.
The complainant drove to work at around midday and, when she arrived, she spoke to the security guard “Polly”. The complainant told Polly that she thought “something ha[d] happened”, that she thought “[she’d] been assaulted” and showed Polly her shoulder.
When cross-examined, based upon of what was contained in her statement provided to police, the complainant agreed that she told Polly: “I think he may have done something to me. I am so sore. Everything hurts. I don’t know what happened. I don’t want to get him in trouble”. The complainant denied, when cross-examined, any other conversation between her and Polly and denied that Polly said: “‘Have you been raped?’, or anything like that”.
After speaking to Polly, the complainant called the police and they came to see her at her place of work. At that time, she told the police: “I’ve been assaulted” and “I think I’ve been raped”. The police then took her home, collected the clothes that the complainant wore the night before, “put them in a brown paper bag” and drove the complainant to Albury Base Hospital. Whilst there, she spoke to detectives and said: “I was raped”.
When at the Albury Hospital Emergency Department, the complainant was prescribed a number of medications – being, Nurofen (for pain relief), Zofran (an anti-nausea medication and prescribed where a person “might feel nauseous, such as pain after an injury, or some other medical condition”) and Endone (a “morphine based pain medication”).
It was an agreed fact at trial that, when she presented to that hospital, the complainant spoke to Dr Kristy Jackson (agreed facts at [1]). The complainant advised Dr Jackson that “she ha[d] been assaulted”. However, she told Dr Jackson she had no memory of the events from “last night” (agreed facts at [2]). The complainant reported to Dr Jackson that she had “pain to her chest wall, bruises and bite marks to her right chest, pain in her vagina, and that she had discharged was [sic] a small amount of blood from her vagina” (agreed facts at [3]).
PS gave evidence that, at around 1:30pm, the complainant rang her “from the [Albury Base] hospital” and requested she “come down”. When there, the complainant, or one of the sexual assault counsellors that was with the complainant, told her “she had been sexually assaulted”.
She was then taken to Wagga Base Hospital, where she was examined between 6:30pm and 8:45pm by Dr Jonathan Ho, a medical practitioner who was working at that hospital, and on-call as a forensic medical examiner.
She report[ed] meeting at 21.30 hours on 10 April 2022 for a drive. Prior to this, she had a watermelon Vodka Cruiser (one bottle). At around midnight on 11 April 2022, [the complainant] asked to go home, and they ended up at the assailant’s home for a drink. She recalled having a Vodka at his house in a whiskey size glass, half full of vodka and the remaining with coke. From there, her recollections were patchy. She does not recall being - she does recall being bitten, strangled, poked and punched in the chest. She recalled telling him to stop. [The complainant] recalls coming home around 6am on 11 April 2022. She noticed bite marks, chest pain, headache, lumps on her head, vaginal pain and bleeding, burning on urination.
Dr Ho noted in his report, and confirmed during his evidence, that the complainant did not provide a “specific history of penetration”.
Dr Ho also obtained the following account from the complainant about the events that occurred at the applicant’s home, as well as her presenting symptoms:
…[The complainant] told me that she was choked. This is a colloquial word that’s commonly used to denote strangulation, and she reported the following symptoms. She reported a headache and this was a - a new headache, with a migraine character, with pain build up behind her left eye, with a throbbing pain character. In terms of her throat, she reported pain with worsening pain on movement. She had a dry sensation in the throat. She reported coughing and she reported a change in her voice, of raspiness. In terms of her vision, she reported some visual changes of seeing spots.
Q. Was she able to tell you when those visual changes occurred? Did you
ask?
A. I took this as new visual changes, as in, changes within the last 24 hours.
In relation to the reported headache “with a migraine character”, Dr Ho expressed the opinion that migraine was “one of the red flags for certain assaults, particularly strangulation”. He later expressed the opinion that “pressure on the neck” was a “likely possibility” for the existence of her migraine.
Upon conducting the head-to-toe examination of the complainant, Dr Ho recorded 11 findings, as follows:
Right neck tenderness (finding 1).
Left neck tenderness (finding 2).
Two 1 cm round mottle bruises on the right neck (finding 3).
Behind the right chin, two 1 cm linear abrasions or straight scratches and one 2 cm linear abrasion or straight scratch (finding 4).
Tenderness on the back of the lower head (finding 5).
Tenderness and swelling on the back of the left lower head (finding 6).
On the left shoulder, a “patterned brown/red bruise with petechiae … which is a special type of bruise that has pinpointing” (finding 7). Dr Ho observed that the bruising was “roughly the size of a bite mark injury”.
On the right breast, “an extensive pattern of red/brown bruising, again with petechiae or pinpoint bruising” (finding 8). Like the bruising on the left shoulder, Dr Ho observed that the bruising on the complainant’s right breast was also “roughly the size of a bite mark injury”.
In the central chest area, redness and tenderness (finding 9).
On the right nipple, abrasions or scratches (finding 10).
On the left inner mid forearm, a “1-1 centimetres brown round bruise” (finding 11).
These findings were recorded by Dr Ho on drawings prepared during his examination of the complainant that were tendered in evidence (Exhibit 4).
When undertaking a genital examination of the complainant, Dr Ho made three findings:
Tenderness at the vulva – that is “vu[l]val tenderness and brown mucus which [he] took as blood and mucus” (finding 12). Dr Ho considered that tenderness is a subjective, and also non-specific, reporting of pain that is unable to be verified upon examination alone. Dr Ho said that, whilst blood and mucus “can occur naturally”, they “can also be found in non-physiological states, such as in an injury”.
“Tears where the two labia minora come together at the 12 o’clock position” (finding 13). Dr Ho said that a medical condition can cause tears “of skin of the genitalia. Physical force such as stretching of the skin…to accommodate that force, can also cause tearing”.
Two “half centimetre abrasions on both sides of the labia minora” (finding 14).
“[i]f there is a medical condition that affects the ability of the skin to be stretchy or increases its vulnerability, that can be one cause, a medical condition. Blunt force trauma, particularly stretching forces, is a possibility. Accidental injury again, is less likely, but there are cases which I have described. And self-inflicted injury, of course, is-is a possibility.”
Without excluding the possibility that he may have “missed seeing any evidence of skin conditions” at the time Dr Ho examined the area, he “did not see any evidence of skin conditions”. In terms of the “timing” of the injuries to the labia minora (findings 13 and 14), Dr Ho expressed the opinion that they were “relatively recent”, as there was an absence of observable features of new skin growth, which is a “hallmark of wound healing”. He also expressed the opinion that there “is a likely possibility that the injuries seen are a result of a penetrating force producing frictional trauma, resulting in abrasions”.
Dr Ho took genital swabs – an external labial swab, a vulval swab and then a low vaginal swab. Although it was Dr Ho’s standard practice “to do a high vaginal swab”, he did not do so – nor did he conduct an examination of the internal parts of the vagina – due to the complainant’s report of pain.
It was an agreed fact at trial that the DNA profile of the applicant was located on the low vaginal swab taken from the complainant (agreed facts, par 6).
On 12 April 2022, the complainant received a number of text messages from the applicant (Exhibit 2) at: 10:53am (“How are you?”); 12:57pm (“Would you like to go on coffee date in public place (love heart emoji)?”); and 2:59pm (“Hey teddy, I know you are upset with me, I am really sorry, I want you to take on coffee date and Please let me know because I will wait for your answer [sic]. Thanks moocho”). The complainant did not respond to any of these messages.
On 12 April 2022, in the morning, the complainant made an appointment to see a doctor at Lavington. Whilst she was waiting outside the doctor’s surgery, she saw the applicant. Her evidence was that she was not “happy to see him”. The applicant approached the complainant and asked: “Could we please talk?”, to which the complainant said: “Leave me alone”. The complainant felt “[s]cared”, so she contacted her supervisor, Karene Bye, and told her that the applicant was “here”. After speaking with Ms Bye, a security guard came to see her.
On 15 April 2022, shortly after 10am, the complainant made a telephone call to the applicant that was lawfully recorded pursuant to a surveillance device warrant. A recording of that telephone call, and a transcription of it, was tendered (Exhibit 6). The recording was played to the jury.
During the call, the complainant asked the applicant “what happened on Monday night?”, to which the applicant responded: “[n]othing happened, we had just kiss’s [sic] and you were drunk. You want to have sex and I don’t [want] to have sex. That’s what happened on that night”.
The complainant put to the applicant that she remembered “waking up and saying no to you. You were on top of me”. The applicant’s response was: “Nah, you wanted to have…sex. You are forcing me…”. The complainant asked the applicant: “Do you remember me saying no to you?”, and the applicant responded:
“Nah, nah, nah. You didn’t say no to me. You were saying. You are forcing me to have…sex with you, but I didn’t do anything with you. Because I already told you that I am not going to have…sex with you. Because you are forcing me…So I told you, you have to wait. I told you. That’s why I didn’t have…sex with you that night. We just had kiss’s [sic] that it.”
The complainant then asked the applicant: “then why were you on top of me? Why was I naked? And why am I sore?”, to which the applicant responded: “Because you are forcing me. That’s what I am telling you baby”.
That same day, the police attended upon the applicant at his home and he was arrested. The complainant’s ‘tongue bar’ was seized from inside the applicant’s wallet. The applicant was taken to Albury police station and it was at this time that he participated in an electronically recorded interview.
On 15 April 2022 the applicant was interviewed by police. The video recording of that interview, and a transcript taken of it, were tendered (Exhibit 5). The interview was also played to the jury.
The applicant told police that whilst he and the complainant kissed, he denied taking off her bra (Q 180; Q187). The applicant said that the complainant “jump on my laps and start kissing me [sic]. I kissed back, yeah”, following which the complainant “started putting her hand into my, you know, like, into my underwear” (Q191). The applicant then recounted the following (Q192):
…So I said, Stop, I’m not gunna have sex with you. So she said, I want to…but I say, No, no, I don’t want to have, uh, sex with you…she was forcing me to have, uh, sex…we cannot have, uh, sex, so you have to wait, I said. She said, No, I can have, uh, sex with you, that’s it. Well, she was forcing me, yeah..
Q. OK. Did you have sex with her?
A. No, not at all. And what happened actually so she started kissing me and, uh, she put my, like, shirts off, and again kissing me all. Then I said, I’m not gunna have, uh, sex tonight with you. I’m just don’t wanna have sex because you are going very fast. So that’s what happened on that night.
Later, the applicant said that “at no point was [his] penis inside her vagina” (Q287; Q299).
The applicant repeated his account – namely, that the complainant was “forcing” him to have sex; that he was telling her that he was “not gunna have a sex”; that she needed “to wait”; and that the complainant said “I’m horny, I have to sex with you so just put it inside” (Q 240-242). The version the applicant gave was that his response to this was (Q243):
So I said, No, it’s, it’s, uh, too early and because you are forcing me to have, uh, sex, I, and the thing is that in there between, I said, You have to control your mind, like, you have to control because you are going fast, you are forcing me…
The applicant told police that he wanted “quality time, that’s it” (Q 215).
The police drew to the applicant’s attention that, following the complainant’s attendance at hospital, when seen by a doctor, the doctor observed “some injuries to her…the area around her vagina”, to which the applicant’s response was (Q306-310):
Ah, so now I’m gunna tell you… I didn’t put it inside…and, uh, what happen she was doing some fingering. So she’s fingering, yeah?
The applicant told police that after the complainant went to the bathroom, she told the applicant that she was leaving and the applicant offered to drive her home (Q243-247).
When asked by police about the complainant’s tongue bar, the applicant told police that, in the course of them kissing, the complainant had removed it from her mouth and left it on the bedside table (Q225). The applicant told police that, the day after they met, he went to Lavington to return the tongue bar to the complainant, however, when she saw him, she told him twice to leave and he was “scared” (Q 338-345).
There was more kissing, and the [applicant] had removed [the complainant]’s bra. She consented to that. The [applicant] told police he “didn’t remove her bra”, in fact, “Nothing had happened apart from some kissing.” The next thing [the complainant] knew is that she woke up, she was naked lying on the [applicant’s] bed. The [applicant] was on top of her, and he was having sexual intercourse with her, penile-vaginal sexual intercourse. When she woke up she told him to stop. He didn’t, he continued…
The Crown, during the course of the opening, observed that the applicant denied there was “sexual intercourse of any kind, digital, penile, anything at all” whereas the Crown case was that the applicant had sexual intercourse with the complainant, because the complainant says it “did happen” and because the forensic evidence supported that evidence. In this last respect, the forensic evidence relied upon were the “injuries, scratches and bruises to [the complainant’s] shoulder, her breast and she had injuries to her genitalia, injuries that she did not have” when she met with the applicant for the first time as well as the presence of the applicant’s “DNA…inside [the complainant’s] vagina”.
During closing submissions, the Crown advanced the same case. At the present time, it is relevant only to note the following matters, relating to whether sexual intercourse occurred in the absence of consent, raised by the Crown:
[The complainant] was quite clear in what she said had happened. She woke up, or she came out of the blackout that she had fallen into, she was naked lying on her back on his bed, he was naked on top of her with his penis in her vagina. When she realised what was going on, she said, “No stop”, or words to that effect. He didn’t stop.
If you accept what [the complainant] has told you, you would accept that there was penile vaginal intercourse, which is sexual intercourse as defined, you would accept that there was no consent because she said, no, and you would accept that the [applicant] knew there was no consent because she said no. But there’s another aspect. On [the complainant’s] evidence, the sexual intercourse commenced while she was blacked out. The law says and I expect his Honour will tell you in an elements document that he will give to you, his Honour will give to you, that a person who is asleep or unconscious cannot consent, and that would be obvious to you, is why a person can’t consent if they’re unconscious or blacked out or asleep.
The applicant’s counsel opened to the jury, and by way of summary: indicated that “[o]ne of the important things that is in dispute is, the [applicant] says sexual intercourse simply did not take place” – and that the applicant, in the pretext call, “makes it very clear…no sex took place; makes it very clear”; that the “DNA tests…results are not in dispute”, albeit that “what those results mean may be in dispute, we’ll see when the evidence comes out”; that in relation to the “injuries that are spoken about”, it would be “up to you, as the jury…to determine what those bruisings [sic] are, or what they refer to, what they mean…the defence says will give, in our closing arguments, what we say it means, but it’s totally up to you”.
Specifically, in relation to consent, aside from emphasising that it was incumbent upon the Crown to prove the lack of consent, and that the applicant knew or was reckless to the lack of consent, counsel for the applicant emphasised that the complainant, in a statement given to the police, said words to the effect: “I don’t know if I consented to having sexual intercourse with [the applicant], because I just can’t remember”.
It is necessary, at this point, to address a threshold complaint raised by the applicant. At the commencement of oral submissions, Mr Licha, who appeared for the applicant both at trial and in this Court, complained that the Crown on appeal was seeking to recast the Crown case. The submission made was that the Crown case at trial was confined to the act of sexual intercourse occurring without consent because, the complainant having lost consciousness, she was unable to consent, whereas on appeal, so it was argued, the Crown was seeking to advance not only that case, but a further, and new, case – namely, that it was also open for the jury to be satisfied beyond reasonable doubt that the offence was committed when, following the complainant regaining consciousness and telling the applicant to “stop”, he failed to do so for some period of time.
Mr Licha indicated that he was “concerned” that “if it’s not addressed, that that evidence alone might be enough to get the first appeal point not being proven” (Tcpt, 17 February 2025, p 7(45)).
The Crown contested that there was any departure from the way in which the matter was conducted at trial.
The Crown’s submission should be accepted: there is, in my view, no substance to the applicant’s complaint. Put simply, that is because:
The Crown opened to the jury on 5 June 2023 specifically referring to the critical events in the applicant’s bedroom as including, following the complainant regaining consciousness and realising that the applicant was on top of her having penile-vaginal intercourse with her, the complainant telling the applicant to “stop. He didn’t, he continued…” (see [71], above).
The evidence adduced at trial was consistent with the way in which the Crown opened the case, and the complainant was cross-examined on it by the applicant’s counsel (see [23]-[25], above).
The Crown, during final submissions to the jury on 7 June 2023, referred to these facts and squarely put this case as a basis to find the applicant guilty on the count (see [73], above).
The trial judge, in his summing up to the jury, referred to the complainant’s evidence in line with the way the Crown put the case to the jury.
The Crown also drew attention to the ruling made by the trial judge on 5 June 2023 in connection with an application concerning the exclusion of evidence pursuant to s 294CB(4) of the Criminal Procedure Act 1986 (NSW), submitting that the trial judge’s summation of the Crown case, contrary to what the applicant submitted, confirms that there has been no change in the Crown case:
I have read the Crown case statement in this matter where [the complainant] asserts in the Crown case statement that she was picked up by [the applicant] in his taxi, driven around Albury for some period of time. They went to a house where she consumed vodka and Coca-Cola with him. Her next recollection is that she was naked on his bed. He was naked on top of her having penile-vaginal intercourse. She said, “No.” He continued to have penile-vaginal intercourse.
That is essentially the Crown case, that is, that he was told to stop and he continued to have sex or alternatively that she was so drunk that he was having sex with her when she was unconscious. (Emphasis added)
Despite what is evident from this ruling concerning the Crown case, the applicant nevertheless sought to argue that the written reasons of the trial judge did not become immediately available. The absence of written reasons is inconsequential: the trial judge heard argument, and then proceeded to deliver oral reasons dealing with that application in the terms outlined. It follows, as the Crown submitted, that the trial judge’s assessment of the Crown case, given prior to the Crown opening its case, confirms that which is otherwise evident from a review of the trial record. That is, the Crown case relating to the occurrence of sexual intercourse and the absence of consent was put in two ways: that the jury could find these elements established having regard to the complainant’s evidence that she blacked out, and that when she awoke the applicant was having sexual intercourse with her and, additionally or separately, that upon becoming aware that the applicant was having sexual intercourse with her, the complainant told him to “stop”, but he failed to do so following that demand.
It follows, therefore, that the review of the jury’s verdict required by ground 1 is to be conducted having regard to the way Crown argued the case at trial.
- It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).
- The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:
“weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.”
- Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:
“notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”
- Setting aside a jury’s verdict as unreasonable is a “serious step” which should not be taken without the Court having regard to the “advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.
- The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].
The applicant’s overarching argument was that, notwithstanding the jury must be taken to have accepted the complainant’s evidence and assessed it to be credible and reliable, this Court should be satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to the applicant’s guilt given what were argued to be inconsistencies and discrepancies in the complainant’s evidence.
More specifically, the applicant’s argument relied upon four interwoven parts of the complainant’s evidence, said to contain inconsistencies and discrepancies, that demonstrated the jury’s verdict was unreasonable and not supported by the evidence. The first was that the complainant’s memory and recall was not only “patchy”, but generally poor. The second was whether it had been established beyond reasonable doubt that sexual intercourse took place. The third was, if it had been established beyond reasonable doubt that sexual intercourse occurred, whether it was in the absence of consent. The fourth were discrete issues about the credibility of the complainant and her evidence, as well as the reliability of her evidence – notably, in the context of what the applicant’s submissions described as the “shower and blackout incidents”. These four matters – and their combination – were said to demonstrate that the jury’s verdict was unreasonable: the applicant submitted that “overwhelming evidence exists that the jury properly instructed, must have held a doubt on the issue of sexual intercourse and consent” (applicant’s submissions at [138]).
I do not accept these submissions. In my view, none of the matters – whether considered singularly or collectively – had the consequence contended for by the applicant: having undertaken a review of all the evidence, there is no basis to find that the jury’s verdict was unreasonable, or against the evidence. On the contrary, it was well open for the jury to be satisfied beyond reasonable doubt that the applicant was guilty, as I will explain.
The nub of the applicant’s complaint relating to the complainant’s memory and recall was the argument that it was so deficient that the jury should have entertained a reasonable doubt about whether sexual intercourse occurred in the absence of consent. Put a little differently, the applicant argued that, in effect, there were substantial difficulties with the complainant’s evidence because she had no recollection of what occurred – with the consequence that, as proof of the offence was dependent upon acceptance of her evidence, the jury ought to have entertained a reasonable doubt whether sexual intercourse took place and, if it did, in the absence of consent.
The applicant’s submission called in aid aspects of the evidence given by the complainant where, in effect, she accepted the following propositions put to her when cross-examined: (a) that she had “re-engineered” what she thought had occurred that night and that she “thought she had sex with the [applicant]”; (b) that her “memory of the night was patchy”; (c) that she “could not remember what happened that night”; and (d) that she was “trying to rethink and join all the pieces together” (applicant’s submissions at [18], [20], [23], [25] and [26]).
The premise of the applicant’s submission should be identified. It is that the complainant’s acceptance that she had “re-engineered” what had occurred and/or trying to “rethink and join all the pieces together”, against the backdrop of her having a “patchy” memory, necessarily meant that the specific version of events the complainant should be understood as advancing (reflected in, say, her evidence in chief) was more or less made up because it was not based upon any true recollection or memory that the complainant had.
Contrary to what was argued by the applicant, the evidence relied upon does not, in my view, inflexibly admit to the characterisation suggested. Rather, it was well open to the jury, and thus to this Court, to assess the complainant’s evidence as meaning, consistent with the Crown’s case and the complainant’s evidence more generally, that her recollection of events was limited because she had lost consciousness. Even accepting, for the purposes of the argument, that the complainant’s evidence was “patchy” (or, as otherwise argued), that description says nothing about what the complainant did observe and did recall. Further, describing the complainant’s recollection of events as “patchy” was entirely consistent with the Crown case – namely, that, having returned to the applicant’s house, and consumed alcohol with the applicant in his bedroom, the complainant lost consciousness during which time the applicant engaged in sexual intercourse with the complainant without her consent.
There is, I consider, nothing in these strands of evidence that would warrant a finding that there were difficulties or deficiencies with the complainant’s evidence such that the jury should have entertained a reasonable doubt. To the extent that the matters put by the applicant cast any doubt upon the complainant’s evidence, and the Crown case more generally, they were quintessentially jury matters, and for them to weigh, assess and resolve, in line with the clear directions that the trial judge gave.
Q. When you spoke to your father and Karene and your mother, according to you, you had no idea what had happened at that point. You were still trying to work it out. That’s correct?
A. Yes.
In relation to Ms Bye’s evidence, the applicant also submitted that, although the complainant told Ms Bye that “she felt like she had been used”, that expression should not be taken to mean that she was sexually assaulted and, additionally, emphasised that the complainant never said: “I was sexually assaulted” (applicant’s submissions at [105]-[108]). A broadly similar submission was advanced by the applicant in relation to the evidence from the complainant’s mother (applicant’s submissions at [100]-[103]). In relation to Dr Ho, the applicant emphasised that the complainant reported to Dr Ho that she had had difficulties with her memory, which was “patchy at times” (applicant’s submissions at [20]).
In my view, the matters relied upon by the applicant in relation to the complainant’s father and mother, Ms Bye and Dr Ho are, whether viewed on their own or together, of confined significance, for the following reasons.
First, the fact that the complainant was, in the morning of 11 April 2022, still processing the events was not in and of itself remarkable given, it would seem, she was still affected by the consumption of alcohol some hours prior.
Secondly, the tenor of the submission contains an assumption of dubious (if not discredited) validity – namely, the fact that the complainant did not immediately use the words ‘sexual assault’ in some way undercuts the likelihood of its occurrence and casts doubt on the veracity of the complainant. As was recently remarked by Davies J in Decision Restricted [2024] NSWCCA 81 at [92]: “… courts now well understand that victims of sexual assault all react differently in terms of when complaint is made, to whom it is made, the detail of the complaint, and how they behave subsequent to the assault…”.
Thirdly, I do not accept, in relation to the evidence from Ms Bye and the complainant’s mother, that their evidence should be construed and understood as narrowly as the applicant sought to contend. This can be illustrated by reference to the evidence from Ms Bye. Rather than her evidence being confined in the way argued by the applicant, it was significantly broader and extended to the following: that the complainant was “very emotional”; that the complainant said “she had felt really used that night”, and showed her bite marks on her body, as well as stating that “the male she was with had done some stuff to her inappropriately”; that “he had had sex with her. She didn’t want to have sex with him”; and that “she felt like she had been completely used”: see the summary of her evidence at [28], above. Thus, given this evidence, there is nothing remarkable, in my view, in the complainant not having use the words ‘sexual assault’, or some other formula. Nor is the position different, in my view, against the backdrop of the complainant having recounted to Dr Ho that her recollections were patchy: see the earlier discussion, including at [92], above.
The applicant also argued that, in addition to the suggested problems with the complainant’s memory and recall, the complainant’s evidence relating to whether sexual intercourse took place was such that the jury should have held a reasonable doubt as to whether it occurred (applicant’s submissions at [15]).
The applicant relied upon strands of the complainant’s evidence elicited during cross-examination where, in effect, she accepted the following propositions put to her (applicant’s submissions at [24] and [26]): (a) “You think you had sex with [the applicant] that night”; and (b) “…you’re just trying to rethink and join all the pieces together, and you are of the belief that [the applicant] was on top”.
Based upon this (or similar) evidence, the applicant’s submission was to the effect that, given the suggested imperfections in the complainant’s memory and recall, the complainant’s evidence was no more than she thinks and believes that she had sexual intercourse with the applicant, as opposed to having a true recall based on what occurred at the critical times. The upshot of these matters, the applicant argued, should have raised a reasonable doubt about whether sexual intercourse in fact took place because, in short, the applicant did not know whether it did.
I do not accept the applicant’s submissions. Put simply, that is because the complainant’s evidence was not given in the abstract, uninformed by what she saw, heard or otherwise perceived. On the contrary, the complainant explained in her evidence the basis for why she ‘thought’ and ‘believed’ the applicant was having sexual intercourse with her. For example, in her evidence in chief, the complainant gave evidence that when she “woke up”, she was “lying on [her] back naked on [the applicant’s] bed”, and that the applicant “was on top of [her], and having sex with [her]”, and that she could feel the applicant’s penis inside her vagina (see also the evidence at [23]-[25], above).
Further, when re-examined, the complainant said the following:
Q. Yes. Thank you, your Honour. You said…that you think the [applicant] had sexual intercourse with you?
A. Yes.
Q. You said, about that, in your evidence-in-chief, that you felt his penis inside of your vagina. Do you remember that?
A. Yes.
Q. Is that something that you felt?
A. Yes.
Q. Is that something that you remember feeling?
A. Yes.
In my view, contrary to the applicant’s argument, there was clear and direct evidence from the complainant that penile-vaginal intercourse took place and it was clearly open for the jury to conclude that it had: that is why the complainant thought and believed the applicant had sexual intercourse with her. The impact, if any, of the gaps that the complainant admitted she had in her recollection was for the jury to assess having regard to all – not just some – of the evidence given at trial.
There is a further matter that stands against acceptance of what was argued by the applicant. The applicant’s submission assumed that the Crown case was based solely upon the direct evidence of the complainant, when that was plainly not so. The Crown case was based on direct evidence from the complainant as well as based on circumstantial evidence – extending to evidence from the complainant, the complainant’s father and mother, Ms Bye and Polly as well as what the Crown described in closing submissions as the “forensic evidence” – the physical symptoms and injuries suffered by the complainant including to the area around her vagina, the bloody mucus discharge from her vagina and the DNA evidence: see [28]-[35] and [43]-[54], above. The proper approach, therefore, is to have regard to that evidence, considered as a whole: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]. When that further evidence is considered, it is clear that there was a substantial body of evidence available for the jury to conclude that sexual intercourse took place, notwithstanding the applicant’s version that “no sex took place”.
In so concluding, I have not overlooked the applicant’s submission that the combined force of the “forensic evidence” was undercut by the fact that a high vaginal swab was not performed by Dr Ho, and that the absence of that testing should cause this Court to hold concerns about “whether the [Crown] has proven their case to the criminal standard” (applicant’s submissions at [115]). In my view, considering all of the evidence, I am entirely unpersuaded that the absence of that testing creates a concern in the way argued by the applicant, particularly in circumstances where Dr Ho explained that the reason why he did not “do a high vaginal swab”, or conduct an examination of the internal parts of the complainant’s vagina, was due to her report of pain: see [53], above. Nor have I overlooked the applicant’s argument in connection with the DNA evidence. That argument was that the presence of the applicant’s DNA on the low vaginal swab occurred because of a transfer of DNA: specifically, the transfer occurred when the complainant’s hand came into contact with the applicant’s penis (as earlier noted, the complainant’s evidence was that the applicant put her “hand on his penis”: see [23]-[24], above), after which the complainant masturbated herself whilst in the applicant’s bedroom (see [68], above). This argument was reflected in the following submission put to the jury by the applicant’s counsel: “…if you accept that, yes, she masturbated, then the possibility of transfer of DNA is also there”. Considering all the evidence, including the complainant’s clear denials that she masturbated herself whilst in the applicant’s bedroom, I am entirely unpersuaded that this argument creates any concern about the jury’s verdict.
The applicant next argued that, again in addition to the suggested problems with the complainant’s memory and recall, the concessions made by the complainant, when cross-examined, were “so powerful” that the jury should have entertained a reasonable doubt about that issue (applicant’s submissions at [19]). The applicant also submitted in this Court that this was “the central issue” (applicant’s submissions at [73]).
The evidence relied upon by the applicant to support this submission was as follows:
Q. Can you go to the last page, paragraph 42. Ma’am, please only the parts I refer you to. If you go to the third last line of paragraph 42, this is what you wrote; third last line in paragraph 42, “I don’t know if I consented to having sexual intercourse with [the applicant], because I just can’t remember.” That’s what you wrote to the police on 13 April 2022. That’s correct, ma’am?
A. Yes.
Q. The bottom line is, ma’am, you cannot remember what happened that night. That’s correct?
A. Yes.
…
Q. Ma’am, you cannot remember if you consented to sexual intercourse with [the applicant] on that night. Is that right?
A. Yes.
I do not accept the applicant’s submissions for the following reasons.
First, the applicant’s submission assumed that the evidence relied upon was necessarily destructive of the Crown case when, in my view, it was not. On the contrary, it was consistent with that case: the Crown always sought to establish that there was an absence of consent because sexual intercourse occurred whilst the complainant was unconscious and incapable of consenting to sexual intercourse. As the Crown put in closing submissions to the jury, the “sexual intercourse commenced while she was blacked out”: see [73], above. Consistent with the complainant’s evidence, and the Crown’s submissions, the trial judge (unremarkably) directed the jury accordingly – namely, that it was open for the jury to find an absence of consent to sexual intercourse if they were satisfied beyond reasonable doubt that the complainant was “so affected by alcohol…to be incapable of consenting to the act of intercourse or is unconscious”.
Secondly, it may be accepted that, based solely upon this evidence, a question might arise about the issue of consent. However, the evidence on this issue was not so confined. The evidence in chief of the complainant was earlier set out: see [23]-[24], above. In addition to that evidence, when cross-examined by the applicant’s counsel, the complainant gave the following evidence which, although earlier set out, should be repeated given the applicant’s submission:
Q. Now, ma’am, when you were asked questions by the prosecutor - now, I’m not going to go into great detail right now, but just a little bit of detail - you say you “blacked out” and when you woke up you “were naked”, the [applicant] “was naked”, and he was “on top” of you?
A. Yes.
Q. And you say he was “having sexual intercourse” with you where you told him to “stop”?
A. Yes.
Q. And he “didn’t stop”, you say?
A. Yes.
Q. Now, you said he “withdrew his penis”, that’s correct?
A. Yeah.
Q. And then you said that he “caused” your “hand to touch his penis”?
A. Yes.
Q. Then you were asked this question, “Q. What’s your next memory? A. In the car.” Do you remember that evidence, ma’am?
A. Yes.
Q. So you wake up, he’s on top of you, you say “no”, he doesn’t stop, he withdraws his penis, then he presumably grabs your arm and puts your hand on his penis. That’s correct?
A. Yes.
There was, therefore, contrary to the applicant’s argument, a body of evidence available to the jury to resolve the “consent” issue in line with the Crown case: this evidence was available to the jury to support the complainant’s version that she had not given any consent to sexual intercourse before she had lost consciousness and further that, having regained it, she directed the applicant to stop, but he “didn’t stop”.
Thirdly, in my view, and in any event, it was open for the jury to proceed on the basis that the generally expressed suggestion put in cross examination to the complainant was directed to whether the complainant consented to the sexual intercourse before she lost consciousness, rather than her evidence about the specific protestations she made to the applicant after she had regained it. That is evident, I consider, not only from the language employed during that part of the cross examination, relied upon by the applicant, but is reinforced by the fact that, at an earlier point, the complainant was specifically cross-examined about the particular evidence the complainant gave about telling the applicant to “stop” once she had regained consciousness – evidence that she adhered to.
The applicant also argued that the complainant had given different versions about when she went to the bathroom, whilst at the applicant’s home, as well as different versions about matters of detail on those occasions when she did use the bathroom. The point sought to be made appeared to be that the “discrepancies and inconsistencies” impacted, at a minimum, upon the reliability of the complainant’s evidence.
The applicant’s point can be sufficiently illustrated by reference to the occasions when the complainant went to the bathroom, whilst at the applicant’s home. In her evidence in chief, the complainant said that she went to the bathroom: see [20], above. The applicant emphasised that, when cross-examined, the complainant recalled going to the bathroom on two occasions – the second time being after she said the applicant sexually assaulted her. Additionally, when cross-examining the complainant, it was suggested to her that there were multiple versions – broadly, relating to what occurred in the bathroom, and what the applicant and complainant were wearing on those occasions – and that there were “inconsistencies in her evidence”. This culminated in the following cross-examination relied upon in aid of this argument:
Q. When I cross-examined you about the differences in these two versions that you never told anyone, really, until today, that there are now two times you went to the toilet; one clothed and one not clothed, you then now remember when you say you blacked out and then came to, and [the applicant] was having sexual intercourse with you, you now remember that you didn’t just black out and then you next remembered the car being driven by [the applicant]; you now came to and you went to the toilet, and you used the toilet, then you blacked out again. That’s correct?
A. Yes.
Q. You blacked out again and then next memory is you woke up in the car being driven by [the applicant]. That’s correct?
A. Yes.
…
Q. There’s now, ma’am, three different versions we have here of this bathroom scene. Ma’am, the third version where you say you came out of this blackout and you went to the toilet where you and he were naked, when you said it in court today, that was the first time you said that. Would you agree?
A. Yes.
Q. And that was after I’ve now shown you the inconsistencies in your evidence. Would you agree?
A. Yes.
Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event.
It is also to be recalled that it is not uncommon that witnesses “may recall or mention some details later, which they had not raised before” and that, if they do so, it does not invariably follow that the evidence is necessarily embellishment rather than actual recollection: Lee v R [2023] NSWCCA 203 at [53].
Further, whether – and, if so, to what extent – the credibility of the complainant was impacted by this cross examination is quintessentially for the jury. This is not a case – or, in my view, even approaching a case – where the complainant’s credibility “has been so damaged that it was not open to the jury to accept… her evidence”: Z (a pseudonym) v R [2022] NSWCCA 8 at [29]. In my view, it was clearly open for the jury to accept the reliability and truthfulness of the complainant’s account.
To sum up. In my view, having reviewed the whole of the evidence at trial, I do not consider that any of the matters advanced by the applicant, considered individually or cumulatively, give rise to a reasonable doubt as to the applicant’s guilt. The complainant’s evidence that she had been sexually assaulted by the applicant was corroborated, and supported, by a range of matters including: her distressed presentation on the morning of 11 April 2022; her numerous physical injuries and symptoms such as bruising, including on her right breast and left shoulder (consistent with a bite mark injury) as well as tearing and abrasions to the inner lips of the complainant’s vagina and the bloody mucus discharge from her vagina; the applicant’s DNA profile being located on the low vaginal swab taken from the complainant; and the complaints that the applicant made on the morning of 11 April 2022 to at least, her mother, Ms Bye and Polly. Further, although recognising the advantages that the jury have over this Court in terms of seeing and hearing the witnesses give evidence, there is nothing in the complainant’s evidence that causes me to hold any concern about the credibility and reliability of her and her evidence. The verdict of the jury was not unreasonable nor against the evidence.
I would dismiss this ground of appeal.
By this ground of appeal, the applicant argues that the trial judge erroneously refused to give a Mahmood direction in connection with the security guard working at West End Plaza on 11 April 2022 identified as Polly and that a miscarriage of justice occurred as a result.
The possible need for a direction in accordance with Mahmood v Western Australia (2008) 232 CLR 397 (‘Mahmood’) arises where a witness who “might have been expected to be called and to give evidence on a matter, is not called by the prosecution”: in those circumstances, a direction may be given that the jury can take into account the fact there was no evidence from that witness in their determination of whether the Crown has proved the guilt of an accused: at [27].
The applicant’s argument was that Polly was an essential witness on the conversation she had with the complainant, where the complainant’s account was “all of a sudden” one of “rape” and “sexual assault” (applicant’s submissions at [132]). It was argued that the complainant’s account “significantly change[d] after the complainant spoke to the security guard Polly” (applicant’s submissions at [135]) but there was “no reliable evidence of the discussions between the security guard Polly and the complainant, and whether the complainant’s evidence had been tainted and to what effect” (applicant’s submissions at [133]). Accordingly, given those circumstances, the applicant argued that, having “asked for a Mahmoud [sic] direction which was not given by the trial judge”, the trial judge erred (applicant’s submissions at [134]).
I do not accept the applicant’s submissions. In my view, this ground of appeal should be rejected: the trial judge did not fall into error in failing to give the jury a Mahmood direction and, separately, no prejudice, less still miscarriage of justice, arose as a consequence of the suggested failure to direct the jury accordingly. My reasons for so concluding follow.
First, there was no expectation that Polly would be called to give evidence but was not. It was clear from the Crown opening that Polly would not to be called and the reason she was not to be called was equally clear from the unchallenged evidence from the Officer in Charge – namely, that she did not wish to become involved and had declined to provide a statement. Presumably, the fact that the Crown was not intending to call Polly was evident well before this time, given the requirements of s 142(1)(c) of the Criminal Procedure Act – a section that requires the Crown to provide to an accused a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial. Thus, the situation does not involve a “disappointed expectation” that the witness would be called but was not: VP v R [2021] NSWCCA 11 at [53]. The applicant, it should be noted, did not request Polly be called at trial and, further, raises no issue about the prosecutor’s decision in this respect: [2023] NSWCCA 3 at [914].
So we don’t know what was said between Polly and the complainant, but what we do know is, phone calls made to the police where now we have an accusation of a sexual assault. So we’ve got Joel, we’ve got dad, we’ve got Karene, the boss, we’ve got mum, not telling any of these non-strangers that she was sexually assaulted. If you remember what the complainant said, at that point, she was still trying to work out what was happening. She didn’t know. But then, for some reason unknown to us, when she gets back to work, after she has had interactions with Polly, all of a sudden, we now have a sexual assault.
Thus, notwithstanding the complainant denied when cross-examined that Polly “put [the] notion that she had been raped into her mind by saying: ‘“Have you been raped?”, or anything like that”, the applicant’s counsel nevertheless sought to raise the possibility that Polly may have said something to the complainant leading to her making the complaint to police that she had been sexually assaulted. That is, the applicant’s counsel raised with the jury the spectre of Polly prompting the applicant to, in effect, transform the complaint – precisely from what was not, in my view, made clear – into one involving “rape”. In those circumstances, to give a Mahmood direction would, I consider, have undercut the submission the applicant put to the jury about the possible transformation in the nature of the complaint by the complainant following her discussions with Polly: the direction would have instructed the jury not to speculate about what might have been said and, given the other directions to the jury, necessarily to focus upon the evidence (evidence, that included what in fact was said – notably, that according to the complainant, Polly had not “put [the] notion” that she had been raped into the complainant’s mind).
It is at this point relevant to note that although the applicant submitted in this Court that a direction was sought from the trial judge, that does not accurately state the position: it was only after the trial judge had summed up to the jury that the following exchange arose:
LICHA: Your Honour, I can’t recall when you said one-on-one if you gave a Murray direction and a Mahmood direction as well.
HIS HONOUR: Nobody asked me for Mahmood direction. But in any event, you certainly wouldn’t get one in relation to Polly because that was well canvassed in regard to the police wanting to ask about it. I would not be inclined to give a Mahmood direction in regard to Joel.
LICHA: Yes, your Honour.
Thus, not only was a Mahmood direction not sought (merely an enquiry as to whether one was given by the trial judge), but the trial judge was not favoured with any submissions as to why such a direction should be given nor, I would add, was any direction formulated. That last step would have been important, given the way the matter was put to the jury by the applicant’s counsel. In my view, the explanation for the approach adopted at trial lies in the way the matter was put to the jury by the applicant, as outlined above.
Thirdly, although the applicant argued that Polly was an essential witness because “all of a sudden” following the complainant speaking with her the allegation was one involving sexual assault, I consider that this somewhat overstates the position. The potential relevance of Polly was appreciably more circumscribed, and confined to an aspect of her discussions with the complainant following which led the complainant to report the matter to police as a sexual assault. It is to be recalled that Polly was the fourth person that the complainant spoke to on the morning of 11 April 2022 about what had occurred earlier that day, whilst the complainant was at the applicant’s home. Further, a premise of the overall argument advanced by the applicant is itself doubtful – viz., that as a matter of substance, there had been a transformation in the complainant’s account. It is true that the complainant never used the expression ‘sexual assault’ or anything similar when speaking to her father, Ms Bye, her mother and Polly on the morning of 11 April 2022. Notwithstanding that she did not do so, the thrust of what she did say was entirely consistent with that occurring. For example, Ms Bye’s evidence was that the complainant told her that “she had felt really used that night”, that “the male she was with had done some stuff to her inappropriately”, and that “he had had sex with her. She didn’t want to have sex with him…”: see [28], above. Thus, in my view, Polly was not a material witness – a characterisation that negates the need to give such a direction: Gregg v R [2020] NSWCCA 245; 355 FLR 348 at [537].
Further, to the extent that the applicant submitted that “Polly would have been able to give probative evidence…about the discussions between her and the complainant, which led to the complaint” that she had been raped, I do not accept the submission. There was nothing before the trial judge, or this Court, to demonstrate what, if anything, Polly might be able to say.
The applicant’s appeal ground is that a miscarriage of justice occurred because of the refusal of the trial judge to give this direction. Despite this, neither the applicant’s written submissions, nor the oral ones in this Court, addressed why, in the circumstances, the suggested failure to give the direction resulted in a miscarriage of justice.
The test for a third limb miscarriage is whether the irregularity is “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: [2021] NSWCCA 278 at [22] (internal citations omitted); [2023] HCA 35; (2023) 97 ALJR 978 at [2]. In my view, irrespective of the formulation adopted to assess whether a miscarriage of justice arose, on none of them did that result from the suggested failure to give a direction.
For the above reasons, I propose the following orders:
Grant leave to the applicant to appeal against his conviction.
Dismiss the appeal.
SWEENEY J: I agree with Chen J.
As his Honour has recounted, the combined evidence in this trial presented a strong Crown case. On my own review of that evidence I do not have any doubt about the applicant’s guilt. Nor should the matters raised on behalf of the applicant have caused the jury to have such a doubt.
**********
Singh
R [2025] NSWCCA 34
(2022) 274 CLR 651
(2019) 268 CLR 57
(1994) 181 CLR 487
(2008) 232 CLR 397
(2016) 258 CLR 308
(2007) 228 CLR 618
(2020) 267 CLR 654
(2020) 268 CLR 123
(2007) 230 CLR 559
(2022) 96 ALJR 728
(2023) 97 ALJR 978
These findings were also recorded by Dr Ho on a drawing prepared during his examination of the complainant that was tendered in evidence (Exhibit 4).
In relation to findings 13 and 14, Dr Ho’s opinion was similar:
The applicant also sought to demonstrate the shortcomings in the complainant’s recollections, as well as her unreliability more generally, by arguing that when she first spoke with her father, Ms Bye, her mother and Dr Ho there was no report or complaint that she had been sexually assaulted by the applicant (applicant’s submissions at [20]-[21], [98], [100] and [105]).
In relation to the complainant’s father, Ms Bye and the complainant’s mother, the applicant drew attention to the following evidence given by the complainant during her cross-examination:
Secondly, in my view, in the circumstances of this case, the appropriate balance was not to give the direction so as to avoid undermining the way the applicant sought to use the complainant’s interactions with Polly before the jury. To understand why I consider this to be so, it is important to understand how the involvement of Polly, and the complainant’s evidence about that interaction, was sought to be used at trial by the applicant.
The complainant’s evidence relating to Polly has earlier been set out: see [36], above. In closing submissions to the jury, the applicant’s counsel sought to make two points about the involvement of Polly, and the complainant’s conversation with her. The first submission was that there was an absence of prompt and consistent complaint of being sexually assaulted because the complainant failed to make an explicit complaint in those terms when speaking with Polly. The second submission sought to imply that, perhaps due to the prompting of Polly, the allegation had been transformed into a complaint involving a sexual assault.
These matters are reflected in how the matter was put to the jury during closing submissions by the applicant’s counsel, where it was said that “[u]p until she spoke to Polly, sexual assault was never on the table” and where the applicant’s counsel said:
The complainant’s interactions with Polly were brief and, earlier on the morning of 11 April 2022, she had already spoken to her father, Ms Bye and her mother about what she recalled happened whilst she was with the applicant at his house. There was, as I have explained in connection with ground 1, a substantial body of evidence available to the jury to support the applicant’s conviction and considering that evidence, and the confined issue to which Polly’s evidence was argued to be material, there was no “real chance” it affected the jury’s verdict, or “realistically [could] have affected the verdict of guilt” or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”.
To the above, the following should be added. First, as I have explained, the absence of such a direction in fact aided an aspect of the case that the applicant wished to advance before the jury relating to the suggested transformation of the complaint following the complainant’s discussion with Polly. Further, in this respect, again as I have explained, I consider that the failure of the applicant’s trial counsel to request the trial judge give such a direction (and submissions explaining the basis for the request) in my view confirms that the absence of a direction did not prejudice applicant’s interests or the fairness of the trial, but conformed to the way in which the trial was conducted. Whilst the failure to seek a direction is not determinative where a direction was required to avoid a perceptible risk of miscarriage of justice, “the absence of an application for a direction may...tend against finding that that risk was present”: De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]. Secondly, given the clear directions given by the trial judge on the onus and standard of proof, as well as the ‘single witness direction’ that, inter alia, instructed the jury to “exercise caution before you can convict the [applicant] because the Crown case largely depends on you accepting the reliability of the evidence of a single witness” and to “examine the evidence of [the complainant] very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial”, a Mahmood direction would, as the Crown submitted, have added little to the directions given.