Zheng v R; Li v R; Pan v R

Introduction

1. On 5 February 2019, Messrs Sonny Zheng, Ji Li and Hoa Liang Pan (the Applicants) stood trial on an indictment containing 8 counts at the District Court of New South Wales before her Honour Judge Culver (the trial judge) and a jury of 12.
2. The counts were as follows: "Count 1: that Sonny Zheng on or about 24 June 2017 at Wolli Creek assaulted the complainant and at the time of the assault committed an act of indecency on her (contrary to s 61L Crimes Act 1900); Count 2: that Sonny Zheng on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting (contrary to s 61I Crimes Act 1900); Count 3: that Sonny Zheng on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting (contrary to s 61I Crimes Act 1900); Count 4: that Hao Liang Pan on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting (contrary to s 61I Crimes Act 1900); Count 5: that Ji Li and Hao Liang Pan on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting and in circumstances of aggravation, namely that they were in the company of each other (contrary to s 61J(1) Crimes Act 1900); Count 6: that Ji Li and Hao Liang Pan on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting and in circumstances of aggravation, namely that they were in the company of each other (contrary to s 61J(1) Crimes Act 1900); Count 7: that Ji Li and Hao Liang Pan on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting and in circumstances of aggravation, namely that they were in the company of each other (contrary to s 61J(1) Crimes Act 1900); Count 8: that Hao Liang Pan on or about 24 June 2017 at Wolli Creek had sexual intercourse with the complainant without her consent knowing that she was not consenting (contrary to 61I Crimes Act 1900)."
3. On 26 March 2019, following a lengthy trial, the jury came to a unanimous verdict on all counts. Mr Zheng was found not guilty in respect of count 1 and guilty in respect of counts 2 and 3. Mr Li was found guilty of counts 5, 6 and 7. Mr Pan was found guilty of counts 4, 5, 6, 7 and 8.
4. Messrs Zheng, Li and Pan were subsequently sentenced, respectively, to an aggregate term of 7 years imprisonment with an aggregate non-parole period of 4 years and 10 months; 11 years and 6 months imprisonment with an aggregate non-parole period of 7 years and 8 months; and 13 years imprisonment with an aggregate non-parole period of 8 years and 8 months.
5. On 25 March 2019, one day prior to the jury returning its verdict but some 13 days after the jury retired to consider its verdict, two jurors (Juror E3 and Juror M) were both, with the agreement of counsel, discharged under s 53A of the Jury Act 1977 (NSW) for having made inquiries contrary to s 68C of that Act. That meant that, by the time the verdicts were delivered the following day, the jury had been reduced from 12 to 10 members.
6. On the same day that Juror E3 and Juror M were discharged, an application, joined in by counsel for all 3 accused, was made for the discharge of a third juror (Juror G2W). Juror G2W's discharge would have had the consequence that the trial could not have continued absent "approval in writing [] given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused": Jury Act, s 22(a)(ii).
7. The application to discharge Juror G2W was ultimately pressed pursuant to s 53A(1)(c) and, in the alternative, s 53B(d) of the Jury Act.
8. Section 53A provides: "(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest - (a) it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or (b) the juror has become excluded from jury service, or (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section - misconduct, in relation to a trial or coronial inquest, means - (a) conduct that constitutes an offence against this Act, or Note - For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror. (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest." Section 53B provides: "The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if - (a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or (b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or (c) a juror refuses to take part in the jury's deliberations, or (d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror." Note - Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror."
9. An application was also made to discharge the whole jury pursuant to s 53C(1)(a) of the Jury Act which provides for such a discharge if, following the discharge of a juror, the court "is of the opinion that to continue the trial … with the remaining jurors would give rise to the risk of a substantial miscarriage of justice."
10. In an ex tempore judgment delivered on 26 March 2019, the trial judge declined to discharge Juror G2W under either s 53A or s 53B, and declined to discharge the jury under s 53C of the Jury Act.
11. As already noted (at [6] above), the jury returned its verdicts later that day.
12. Messrs Zheng, Li and Pan each bring separate appeals but on the common grounds (the failure to discharge grounds) that the trial judge erred in: (i) failing to discharge Juror G2W; and (ii) failing to discharge the jury.
13. In addition, Mr Li separately contends that the verdicts of guilty on counts 5, 6 and 7 against him were unreasonable and cannot be supported having regard to the evidence. Ms Lewer, who appeared for Mr Li, confined this aspect of the appeal to an argument that there was insufficient evidence to prove beyond a reasonable doubt the existence of a joint criminal enterprise between Messrs Li and Pan at the time of the commission of count 5, and for all counts that there was insufficient evidence to prove beyond reasonable doubt that Messrs Li and Pan were "in company" and acting in accordance with a common purpose. In particular, she contended that the Crown failed to rebut a reasonable possibility on the evidence of a possible coincidence of intention between the two men and that they independently determined to have sexual intercourse with the complainant without any express, implied or inferred agreement between them. Mr Pan joined in these grounds of appeal.
14. In relation to the challenge to the verdicts on counts 5, 6 and 7, I have had the benefit of reading the reasons of Ierace J with which I agree and for those reasons consider that the grounds of appeal in relation to those counts should be rejected. In what follows, I deal with the failure to discharge grounds which are common to all applications.

Failure to discharge Juror G2W and the jury

1. To understand the context of the failure to discharge grounds, it is necessary to set out some detail in relation to the circumstances in which the discharge applications came to be made.

Background to the charges

1. The charges in respect of which the Applicants were convicted related to events over the course of the evening of 24 June 2017 and the early hours of 25 June 2017 at an apartment in Wolli Creek.
2. The complainant travelled to the apartment with Mr Zheng who, having connected with her on the dating application "Tinder" but not having previously met her, picked her up in an Audi motor vehicle and took her to the apartment in Wolli Creek where three other male and female acquaintances of Mr Zheng were already present when they arrived, at about 9:00pm.
3. The complainant was a Korean national. She spoke Korean, some limited English but little or no Mandarin or Cantonese. The others at the apartment were Chinese speakers but spoke in English when speaking to the complainant.
4. The evening began with the eight young people sitting around a table, drinking various alcoholic beverages including wine, whiskey, soju and an unidentified blue liquor whilst eating Chinese hotpot.
5. There was an issue on the evidence at the trial as to how much alcohol the complainant and various of the accused had consumed in the course of the evening and by the time of the events the subject of the charges. This was explored in the examination and cross-examination of the complainant, Mr Pan (the only accused who gave evidence) and a number of the females who were present at the apartment on the evening of 24 June 2017 and who gave evidence.
6. Returning to the factual background, after several hours sitting together at the dining table in the company of the others and eating and drinking, the complainant and Mr Zheng started kissing consensually whilst sitting at a dining table in a common area of the apartment.
7. At some point subsequent to this, they went to one of two bedrooms in the apartment although there was no particular clarity, including in the complainant's evidence, as to whether or not she entered the bedroom with Mr Zheng or a short time before him.
8. It was at some time following this point that the events the subject of the charges and ultimately the convictions occurred. It is not necessary, however, to delve into any further detail for the purpose of considering the failure to discharge grounds.

Background to the discharge applications

1. In the course of his cross-examination, in which Mr Pan had the assistance of an interpreter, the following evidence was given: "Q. If you drink too much, the Chinese word would say drunk? A. INTERPRETER: We Chinese wouldn't like to say the word drunk. Q. So if you drink too much, you use the word drunk. Is that what I understand? A. INTERPRETER: Drunk have many, many meanings. There is happy drunk - happily drunk or very drunk. Q. So when you're trying to describe someone who's drunk a lot, how would you describe their level of drunk? A. INTERPRETER: We Chinese define the many levels of drunkenness. Q. So if you were to say somebody had drunk a lot, what would you mean by that? A. INTERPRETER: Sorry, I'm struggle with using expression lines..(not transcribable)..and I really don't know the meaning of 'lan,' and it literally means 'very bad', and literal meaning may be 'over drunk'. But the witness said he didn't express himself clearly, because he didn't put the English word 'happy' before he said 'drunk'. Therefore, he believe he made a mistake at that time. But he defined two levels of drunkenness, happily drunk and lan drunk, which is over drunk - the drunk. Q. And what drunk? A. INTERPRETER: Drunk - drink too much. Q. What was the second drunk? Happily drunk and - A. INTERPRETER: L-A-N drunk. Q. L-A-N drunk? A. INTERPRETER: Yes. I don't understand on what - Q. Okay. A. INTERPRETER: - what it - Q. So, when you told police at answer 338, 'Was she' - in reference to the Korean girl - 'drinking as well?' And you answered, 'Yeah. She drink a lot.' What did you mean by that? A. INTERPRETER: Yes. He drank. Q. I'm asking, what did you mean when you said to the police, in reference to the Korean girl at answer 338, 'She drink a lot'? A. INTERPRETER: Right. Q. When you've told police, 'She drink a lot,' you meant to tell them that she was drinking a lot that night, weren't you? A. INTERPRETER: No. No. The - my English, at that time, when I answer that question, no interpreter. I have interpreter. I didn't ask the interpreter to do the interpretations. I did the answer myself. Q. I suggest that when you said in answer 332 that she was drunk, that's because she was, in fact, drunk. A. INTERPRETER: No. I thought she was happily drunk. Q. You've given evidence that you were drunk. Is that right? A. INTERPRETER: Right. Q. Was that lan drunk or happy drunk? A. INTERPRETER: Lan drunk. Q. When you said to police at answer 448, 'I'm drunk and then she is drunk' - in reference to the Korean girl - you meant to tell police that you were drunk and the Korean girl was also drunk. A. INTERPRETER: No. I thought she was happily drunk. Q. You didn't tell police when you answered that question that you were lan drunk and she was happy drunk, did you? A. INTERPRETER: Right. Q. I suggest what you're doing today in giving this evidence, is trying to minimise how drunk [the complainant] was that night. A. INTERPRETER: No. She wasn't drunk. She just happily drunk."

Reasons on the discharge applications

1. The trial judge delivered her reasons in relation to the applications to discharge Juror G2W and the jury ex tempore on 26 March 2019. In those reasons, she referred to Juror G2W as Juror C, presumably as he was the third juror to be the subject of a discharge application. The two other jurors (Juror M and Juror E3) who were discharged had been discharged with the agreement of counsel on the previous day.
2. In the course of her reasons, the trial judge said: "The juror in respect of whom all defence counsel seek that there be a discharge is a juror who was said by our court officer, under oath, to have made a reference earlier in the trial in the lift area, when the jury was being taken to the jury room, that 'lan drunk' could be interpreted as 'deathly' or 'deadly drunk'."
3. Two points should be made about this observation. In her evidence on oath which has been set out in its entirety above, Caitlyn did not in fact state what she had heard the juror say about how the term "lan drunk" could be interpreted. Her Honour must have conflated the evidence with what she recalled being told about the conversation by the Court Officer when it was reported to her on 8 March 2019. Secondly, it was certainly not put to Juror G2W in either passage of his examination by the trial judge, both of which have been set out in their entirety above, that he told another juror that "lan drunk" could be interpreted as "deathly" or "deadly drunk".
4. The trial judge then referred to the evidence of Juror G2W as follows: "The juror gave evidence, firstly, that he can speak Cantonese, but he does not speak Mandarin. The juror gave evidence that he did not have any such conversation. He later, in the course of his evidence, said that he did not have any conversation, 'Not that I can recall.' He then later in his evidence denied that he had any such conversation. The juror was taken to the context reported by the court officer that the conversation had occurred at the lift area, or in the lift, when the jury was being taken upstairs."
5. The trial judge recorded that: "The Court in this application is asked to accept that the court officer's evidence was truthful and accurate. Although the Crown submitted that there could have been some misunderstanding by the court officer about such conversation as one hypothesis in the circumstances, I am of the view that, given the contemporaneous report by the court officer of the matter, and the fact that subsequently, one of the accredited interpreters did, whilst at the witness box, assist the Court with an understanding that one possible interpretation of 'lan drunk' was 'deathly' or 'deadly drunk', those circumstances allow the Court to accept the accuracy and honesty of the court officer's evidence."

Section 53A of the Jury Act

1. The arguments presented on appeal in relation to the mandatory discharge application made pursuant to s 53A of the Jury Act were, in essence, threefold. The first related to the proper construction of s 53A and the question of what needed to be established to engage that section. The second related to what the trial judge in fact found on Juror G2W's (or Juror C's) evidence and whether or not her Honour should have found that he had been deliberately lying to the Court when giving that evidence.
2. It was also put that if, on a proper understanding of the trial judge's reasons, her Honour had made no finding one way or the other as to whether or not the juror was being honest or truthful in his evidence, her failure to do so was in itself an error which deprived the Applicants of the opportunity to argue that the jury should have been discharged.
3. It may be accepted that "misconduct" within the meaning of s 53A(1)(c) of the Jury Act is a term of broad ambit and need not constitute an offence. Whether or not there has been "misconduct" such as to engage s 53A involves a process of evaluation, a matter that has implications for the extent to which an appellate court may interfere with such an assessment: see Hoang v R (2018) 98 NSWLR 406; [2018] NSWCCA 166 at [138] (Hoang). Furthermore, it has been held that "[t]he terms of s 53A are unequivocal: if the trial judge is satisfied that a juror has engaged in misconduct there is no other course available but to discharge the juror": Hoang at [73] per N Adams J, Hoeben CJ at CL agreeing. Sometimes, depending on the nature of the misconduct and the extent, if any, to which it has infected other members of the jury, the discharge of a juror may lead to the discharge of the entire jury pursuant to s 53C(1) of the Jury Act.
4. Both Mr Lange for Mr Zheng and Ms Lewer for Mr Li submitted that s 53A(1)(c) would be satisfied and engaged if the Court formed the view that there was a "reasonable apprehension", "reasonable possibility" or a "real risk" that the juror had given false evidence. This submission took as its foundation the reference in s 53A(2)(b) to "a risk of a substantial miscarriage of justice" in defining "misconduct" for the purposes of s 53A(1)(c).
5. No authority was cited in support of this suggested construction and it is not consistent with the plain language of the section which has been set out at [9] above. Section 53A(1)(c) will be engaged where the court finds that "the juror has engaged in misconduct" (emphasis added). The section's directive to discharge a juror is dependent upon a finding to this effect. The section is not expressed in terms of "risk" or "possibility". So, also, the definition of "misconduct" in s 53A(2) requires a finding that certain "conduct" has occurred. Section 53A(2)(b) is concerned with conduct that gives rise to a risk; it is not concerned with a risk that actual conduct has occurred.

Section 53B of the Jury Act

1. It follows from the above analysis that the trial judge also did not err in dismissing, in the exercise of her discretion, the alternative discharge application to the extent that it was advanced under s 53B of the Jury Act. Such a discretionary decision not only attracts the strictures appropriately placed on appellate interference by decisions such as House v The King (1936) 55 CLR 499; [1936] HCA 40 but also is a decision of a kind which the trial judge is best placed to make by reference to "first hand impressions" rather than the "review of a cold record": see Wu at [101]-[102]; R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [40] (Lamb).

Section 53C of the Jury Act

1. The application that was made to the trial judge to discharge the jury pursuant to s 53C of the Jury Act was advanced by reference to a number of considerations including but not limited to the circumstances surrounding the overheard conversation and the subsequent examination of Juror G2W in respect of that conversation.
2. Other matters relied upon in support of this discharge application included:

• the circumstances surrounding the discharge of two other jurors;
• the fact that the jury had been reduced to 10 members;
• allegations that had been made by one of the jurors (who was discharged on 25 March 2019) in a typed note that she had provided to the judge ( see [32] above);
• the fact that four jurors including the foreperson had been examined by the trial judge pursuant to s 55DA of the Jury Act;
• reports of disharmony within the jury room;
• the length of time the jury had been deliberating by the time of the discharge application;
• and suggestions that this had generated pressure on jurors to compromise on verdicts to expedite the deliberative process contrary to the jurors' oaths.

1. It was not seriously contended that the trial judge had failed to consider each of the matters that were said, cumulatively, to justify a discharge of the jury or that the trial judge had erred in some material way in her approach to the consideration of those factors.
2. In truth, the trial judge dealt systematically and impressively with each of the matters that had been presented for her consideration and the Court was helpfully taken by the Crown Advocate through each of those matters. Many of them fell away in light of the trial judge's decision that Juror G2W had not engaged in misconduct. Moreover, when the overheard conversation was originally reported to the trial judge and then to trial counsel, it was dealt with by the direction to the jury which has been extracted at [30] above and about which no complaint was or is now made.
3. To the extent that there had been a degree of disharmony in the jury room, that had also been the subject of a direction to the jury that was evidently considered entirely appropriate. As to the fact that one of the two jurors who had been discharged (Juror M) had been identified as the source of some disharmony, that juror's discharge also ameliorated this complaint.

Messrs Pan and Li's third ground of appeal: whether the verdicts for counts 5, 6 and 7 were unreasonable

1. The third ground of appeal advanced by Messrs Pan and Li is that the verdicts of guilty for counts 5, 6 and 7, which were counts of aggravated sexual intercourse without consent, were unreasonable and could not be supported, having regard to the evidence. Mr Pan did not make written or oral submissions in support of the ground, being content to rely upon those made by Mr Li.
2. As to the principles that apply to an unreasonable verdict ground of appeal, in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Bathurst CJ (Johnson and Fullerton JJ agreeing) said: "84 The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. 85 As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage of justice, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice."

Evidence regarding counts 5, 6 and 7

1. It is necessary to relate more of the evidence concerning those counts. It was the complainant's evidence, as noted above at [22], that during the dinner party she and Mr Zheng consensually kissed in a common area of the apartment. On the Crown case, this was shortly before 2am. The complainant said she told Mr Zheng that she felt drunk and asked to be driven home. Mr Zheng told her that he could not, as he was drunk as well. He said that he could drive her home "a bit later" and, indicating a bedroom, suggested that she "go into a room and have some sleep". The complainant went into the room, which was dark, and sat on the bed. She opened the Uber app on her phone, intending to book a ride home. Mr Zheng entered, and they again consensually kissed. Mr Zheng started to take the complainant's dress off. She told him not to, saying that she had her period, but he took off all of her clothes against her protestations, she being too drunk to physically prevent him. Mr Zheng took his clothes off and sucked the complainant's nipples, that behaviour being the basis of count 1. Mr Zheng then engaged in penile-oral and penile-vaginal intercourse with the complainant, which was the basis of counts 2 and 3 respectively. Mr Zheng then left the bedroom, closing the door behind him.
2. While Mr Zheng was in the bedroom with the complainant, the other three women at the dinner party departed, accompanied downstairs by Mr Pan and Mr Jiahao Zou, who was the fourth man at the dinner party. Mr Pan and Mr Zou then returned. The womens' departure was captured on CCTV in the vestibule of the apartment building, fixing a time for that event.
3. The complainant said that she was in shock at what Mr Zheng had just done to her. Less than a minute after Mr Zheng left the room, Mr Pan entered. She said: "I can't remember exactly but I think he wasn't dressed". He introduced himself as "Jimmy" and, with nothing further being said, got on top of her and commenced penile-vaginal intercourse; this being the basis of count 4. She told him "not to do that." Mr Li then entered, naked, saying nothing, and put his penis in her mouth, while Mr Pan was still having penile-vaginal intercourse with her. This was the basis of counts 5 and 6, as explained by the Crown Prosecutor in her opening: "Count 5 relates to the time when Mr Pan had his penis inside [the complainant's] vagina at the same time that Mr Li had his penis in her mouth and count 6 relates to Mr Li putting his penis in [the complainant's] mouth."

The Crown case

1. The Crown case was that, in respect of counts 5, 6 and 7, there was a joint criminal enterprise between Messrs Pan and Li to have sexual intercourse with the complainant without her consent, which could be inferred from the evidence as to the circumstances of the sexual assaults by them. In relation to count 5, the sexual intercourse without consent by Mr Pan was within the terms of the joint criminal enterprise agreed between them, so that Mr Li, as well as Mr Pan, was guilty of Mr Pan having sexual intercourse with the complainant without her consent and in his company. In relation to counts 6 and 7, the joint criminal enterprise operated to render Mr Pan guilty of the aggravated sexual intercourse without consent by Mr Li. In relation to counts 6 and 7, in respect of Mr Li, if the jury had been satisfied beyond reasonable doubt that he had sexual intercourse without consent but not that it was committed in company, the alternative count of sexual intercourse without consent simplicter was made out, contrary to s 61I of the Crimes Act.

The element of the offence being committed "in company"

1. For all three counts, pursuant to s 61J(2)(c) of the Crimes Act, the jury had to be satisfied beyond reasonable doubt that the direct perpetrator (Mr Pan in relation to count 5 and Mr Li in relation to counts 6 and 7) committed the sexual intercourse without consent "in the company of another person", which was pleaded in the indictment as "in the company of each other". The trial judge's direction to the jury in that regard is not challenged as to its correctness: "Let us have a look at what is meant by 'in company'. … The Crown must prove beyond reasonable doubt in … charges 5, 6 and 7 that Hao Liang Pan and Ji Li were in company of each other. Mere presence at the location where a crime is committed is not enough to establish [this] element … For example, a person standing at a bus stop on a corner where a robbery is being committed is not in company with the person committing that robbery merely because they happened to be at that location. More is required. Clearly we are not looking at a robbery allegation here, I have just used that as an example. To prove the aspect of being in company, the Crown must prove beyond reasonable doubt that: (a) Hao Liang Pan and Ji Li shared a common purpose, that the accused performing the act of sexual intercourse - and for charge 5 here that is Hao Liang Pan, for charges 6 and 7 that is Ji Li - would sexually assault [the complainant], that is would have sexual intercourse without her consent whilst knowing or being reckless about the fact she was not consenting; and (b), the other accused, Ji Li, for charge 5, and Hao Liang Pan for charges 6 and 7, was present within the bedroom with such proximity as to enable the inference that the coercive effect of the presence of the two men operated to (I) encourage the accused performing the act of sexual intercourse to achieve that common purpose by emboldening him, or reassuring him, or (ii) intimidate or coerce [the complainant] into submission. … In company, as you have seen, involves … 'sharing a common purpose by reaching an agreement, whether expressed or not'. It does not have to be spoken in words. You need to look at all of the circumstances to see whether you can infer that agreement beyond reasonable doubt."
2. This direction as to the meaning of "in company" is consistent with authority: FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182 at [121]-[126]. There is a degree of overlap between the elements of joint criminal enterprise and an offence being committed "in company", notably, there being a common purpose. In order to establish that an offence was committed "in company", it is necessary that the applicant was also physically present, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant. Physical presence at the commission of the offence is not a necessary element of a joint criminal enterprise; Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 per Bathurst CJ (Johnson and Fullerton JJ agreeing) at [47].

The applicant Mr Li's submissions on the third ground

1. The applicant submitted that the evidence as to Messrs Li and Pan sharing a common purpose was deficient; that it did not extend beyond a "mere coincidence of common actions". In written submissions, the applicant stated: "… there was a live hypothesis that the men both determined to have sexual intercourse with the complainant but there was no agreement between the two of them to do so together in each other's company. This was a case of competing inferences. The Crown was required to negative this possibility beyond a reasonable doubt."
2. Accordingly, count 5 is not made out at all in respect of Mr Li, since his liability for that count is dependent upon there being a common purpose pursuant to the doctrine of joint criminal enterprise in order to hold him liable for the sexual assault by the direct perpetrator (Mr Pan), as well as to establish the element of aggravation of being "in company".
3. Mr Li submitted that none of the evidence identified by the Crown, except for the two men entering the bedroom in a very short time of each other, was particularly probative of a common purpose shared by Messrs Pan and Li to have sexual intercourse with the complainant without her consent, to the exclusion of a competing available reasonable inference of a coincidental intention of each of them to independently pursue that objective.
4. Mr Li relied upon R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 which was a case of competing inferences as to whether co-offenders of sexual assault were acting in company. The applicant was convicted at trial of aggravated sexual intercourse without consent, the circumstance of aggravation being that he was in company with another man ("AK"), who also had sexual intercourse with the complainant without her consent. A ground of appeal was that the verdict was unreasonable and against the weight of the evidence, as to the circumstance of aggravation. Ipp JA (Buddin and Shaw JJ agreeing) upheld the ground, and in so doing referred to the relevant evidence: "168 … the complainant followed the appellant from the bedroom and saw another man in the lounge room (AK) whom she had not met before. He was sitting on the lounge in clear view of the complainant. His presence intimidated her. When the appellant returned from the front door he pushed the complainant back into her bedroom. This occurred in front of AK and his presence placed no restraint on the appellant. AK, too, made no attempt to intervene. The appellant then closed the door, threatened the complainant and had intercourse with her. Within a very short time thereafter she heard the appellant ask AK whether he 'wanted' her. Intercourse then occurred with AK. 169 The Crown submitted that it was open to the jury to conclude on this evidence that the sexual assaults were not coincidental but were the consequence of an agreed course of conduct to assault the complainant sexually. The jury was entitled to infer that the presence of each was intended to and did intimidate the complainant. 170 In my view, on the facts there were two possible inferences open to the jury. One was that shortly before the appellant pushed the complainant back into the spare bedroom, he had agreed with AK, by conduct or otherwise, that each would sexually assault the complainant. Another was that there was no such agreement and AK decided to sexually assault the complainant only when the appellant emerged from the bedroom. In my view, both inferences were equally probable. That is, it was not open to the jury to conclude beyond reasonable doubt that the offence, the subject of the first count, was committed in company."

Consideration

1. It is appropriate to consider the evidence as to Messrs Pan and Li's state of dress when they entered the bedroom. In her evidence in chief, the complainant gave the following evidence in relation to Mr Pan: "Q. … when Jimmy first entered the room and said his name was Jimmy ... A. INTERPRETER: Yes. Q. … did he have clothes on at the time? A. INTERPRETER: I can't remember exactly but I think he wasn't dressed." Cross-examination on behalf of Mr Pan elicited the following evidence as to Mr Pan's state of dress when he entered the room: "Q. He was fully clothed, I suggest to you? A. INTERPRETER: No. Q. I suggest that you started kissing each other. What do you say to that? A. INTERPRETER: That never happened. Q. That he was in fact clothed at the time you were kissing each other? A. INTERPRETER: No, that didn't happen." As to Mr Li, the complainant's evidence in relation to his state of dress was unequivocal: "Q. When the fat man came in, was he dressed or naked? A. INTERPRETER: He was naked."
2. The complainant's degree of uncertainty as to Mr Pan's state of dress ("I can't remember exactly but I think he wasn't dressed") was a matter the jury could take into account in determining whether they accepted her recollection and, if so, what weight they placed upon it. If they accepted the complainant's evidence that when Mr Pan entered the bedroom he told her his name ("Jimmy") and got on top of her and put his penis in her vagina, they were entitled to take it into account in determining the weight to attribute to her conclusion that he was already undressed when he came in.
3. It is relevant to this aspect of the third ground of appeal that counsel for Mr Pan and Mr Li did not object to the Crown's characterisation of the complainant's evidence that Mr Pan was naked when he entered the bedroom. Nor did Mr Pan's counsel submit otherwise to the jury in the course of his closing address, instead referring to the conflicting evidence as to whether Mr Pan was naked or fully clothed when he entered the bedroom and reminding the jury that his client's account was that he did not take his clothes off until after he engaged in consensual sexual acts with the complainant on the bed.
4. The complainant's account of Messrs Pan and Li entering the bedroom within a minute of each other, already undressed and immediately engaging in sexual intercourse with the complainant, Mr Pan having said only his name and Mr Li saying nothing at all, simply placing his penis in her mouth, is a fundamentally different evidentiary proposition to that which was considered in R v ITA and, in my view, is one that was quite capable of eliminating the availability of the contrary inference; that is, that Messrs Pan and Li coincidentally had the same intention independently of each other.

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