Alharbi v The Queen - [2020] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Alharbi v R [2020] NSWCCA 130
Hearing dates: 29 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Wilson J at [3]
Decision:
1. Refuse leave to advance grounds 1 and 2;
2. Grant leave to appeal on ground 3;
3. Dismiss the appeal

Catchwords: CRIMINAL LAW – sexual assault – indecent assault – two complainants – conviction following trial – question of adequacy of directions to jury as to use to be made of evidence of one complainant relevant to charges concerning another – whether a “Mitchell direction” was required – whether trial judge gave “sufficient weight” to inconsistencies in the evidence of the complainants – whether inconsistencies between evidence of complainants should have raised a doubt – whether convictions unsupported by the evidence
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Cook v R (2000) 22 WAR 67; 100 A Crim R 11
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
R v Collins [2001] NSWCCA 386
R v Markuleski 52 NSWLR 82; [2001] NSWCCA 290
R v Mayberry [2000] NSWCCA 531
R v Mitchell (Court of Criminal Appeal (NSW), 5 April 1995, unrep)
R v RCK (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Tripodina [1988] 35 A Crim R 183
R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unrep)
RRS v R [2013] NSWCCA 94; 231 A Crim R 168
Texts Cited: Nil
Category: Principal judgment
Parties: Muaddi Fahad Alharbi (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Levet (Applicant)
E Balodis (Crown)
Solicitors:
Algalele Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/391396
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 April 2019

Before:

Priestly SC DCJ

File Number(s):

2017/00391396

Judgment

HOEBEN CJ at CL: I agree with Wilson J and the orders which she proposes.
HARRISON J: I agree with Wilson J.
WILSON J: From 26 March 2019 to 4 April 2019, the applicant stood trial before the District Court of New South Wales on an indictment charging him with four counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW), and one count of sexual assault contrary to s 61I of the same Act. The jury returned verdicts of guilty to each count. An aggregate sentence of 2 years imprisonment, with a non-parole period of 15 months, was later imposed upon him for those crimes. He now seeks leave to appeal against his convictions. Unsurprisingly, there is no application for leave to appeal against his sentence.
The applicant seeks to advance three grounds of appeal:

“That [the trial judge] erred in failing to warn the jury (or adequately warn the jury) against using the offences of one complainant towards proof of the guilt of the appellant of offences involving the second complainant, and vice versa; and

That His Honour’s summing up to the jury was unbalanced in that it failed to give sufficient weight to the discrepancies between the evidence of each of the two complainants, particularly as to the issue of consent of the complainants or either of them in relation to certain conduct of the appellant; and

That pursuant to s 6 of the Criminal Appeal Act 1912 (NSW) the verdicts were unreasonable”.

Although the first ground involves a question of law, the issue was not raised at trial and r 4 of the Criminal Appeal Rules applies. The second and third grounds raise mixed questions of fact and law and, additionally, r 4 applies to ground 2. Leave to appeal is required.

The Proceedings in the District Court

Of the five counts charged against the applicant, the four counts of indecent assault (counts 1, 3, 4, and 5) related to Ms Y. Count 2, the allegation of sexual assault, related to Ms V. In summary form, the Crown case advanced at trial was as follows.
Ms Y and Ms V were both foreign tourists in Australia for a holiday. They met on Boxing Day 2017 whilst staying in a dormitory room in a backpackers’ hostel in Sydney. Ms Y was from Hong Kong; Ms V was from Finland. Both were in their early twenties. Both had limited English.
Ms Y had downloaded an accommodation application or “app”, “Couchsurfing”, to assist her in both finding inexpensive accommodation in Australia, and in meeting other young people with whom to see the sights. She received a number of messaging requests via the app on 26 December 2017 regarding her plans for that day. One was from a user going by the name of “Sam David”. This was the applicant. Although he did not know Ms Y, he sent her a number of messages, and it was agreed during a “group chat” involving a number of people that Ms Y thought were travellers like herself, to meet at Central Station that afternoon to see Sydney Harbour and other attractions together.
Ms Y asked Ms V if she would like to accompany her, and the two young women went to Central Station for the meeting. Although none of the other participants in the group chat appeared, the women met the applicant there as arranged. Neither had previously known or had any interaction with him. Another man, Peter, from Hong Kong, had also arranged to meet the group; he joined them at a bar elsewhere a little later. He remained with them briefly, before leaving to meet someone else.
The applicant, Ms Y and Ms V went to a bar near the Opera House and found seats. The applicant bought drinks for everyone, and the group introduced themselves. The applicant said that he was from Dubai, but was a doctor in practice in Australia and living at Darling Harbour, with a clinic in which he carried out surgery locally. He said his family were wealthy, and referred to having a Ferrari parked close by.
The three left the bar and walked on towards Circular Quay, where the applicant bought a bottle of liquor. The complainants bought some sandwiches. The group sat under the Harbour Bridge drinking the liquor and eating the sandwiches. The applicant poured the drinks and, although the liquor was mixed with soft drink, Ms Y thought that they tasted very strong.
After a time it began to rain and the group went in search of shelter. Seeing a restaurant, Ms Y suggested that they go inside and have hot drinks; the applicant suggested that they get a room in a hotel so that they could shower and dry. He inquired at a hotel about a room but there was no vacancy.
Ms Y and Ms V both said that they would return to their hostel, but the applicant continued with the suggestion that they obtain a hotel room, telling the women that they could then finish their drinks. The group went on to a second and then a third hotel, ultimately securing a hotel room. The applicant had suggested that they should get a room in “a five star hotel”; there was initially no discussion about payment for the room, although Ms Y and Ms V were concerned about expense. When they expressed their concerns, and again said that they would return to their hostel, the applicant offered to pay for the hotel.
The applicant went to the hotel reception desk and paid for the accommodation. The three then went to the hotel room. Ms Y sat down in an armchair; the applicant and Ms V sat on a couch.
At some point the applicant asked the girls to “be sexy” with each other, and they kissed as he photographed them.
After a period of time the applicant began to try to kiss Ms V. Eventually, Ms Y observed them to kiss. When the applicant was not nearby, although still in the hotel room, Ms Y asked Ms V about the kiss, saying to her something like, “Is that okay”. According to Ms Y’s evidence, Ms V said, “It’s alright” or “okay”. Ms V did not give that evidence; she denied having willingly kissed the applicant, or telling Ms Y that a kiss between them was okay.
Ms V went to the balcony for a cigarette, followed by the applicant.
On returning to the room, the applicant took hold of Ms Y and tried to kiss her on the neck. She pushed him away, but he persisted. He pushed her onto the bed in the room and, whilst trying to kiss her, began touching her vagina through her underwear (count 1). Telling him “no”, Ms Y pushed the applicant away from her. She ignored him, and he approached Ms V.
Ms Y saw Ms V and the applicant kissing at some point.
At a point when Ms Y went in to the bathroom, the applicant approached Ms V and began touching her breasts and trying to kiss her. She told him that, “this is not okay” and tried to push him away. He said that he had paid for the room and wanted something back. Ms Y returned from the bathroom and the applicant turned his attention to her. When Ms V went out onto the balcony for a cigarette, she saw him trying to kiss Ms Y, and touch her breasts. Ms Y looked uncomfortable and signalled that she needed help. Ms V returned to the room and the applicant stopped.
When Ms Y went into the bathroom the applicant started to touch Ms V again, trying to kiss her on the mouth. She pushed him away and, when Ms Y came back from the bathroom, Ms V returned to the balcony. The applicant followed her and began to touch her vagina over her shorts. When she told him she didn’t want to have sex with him, he again said that he had paid for the room and wanted something back. Ms V walked away and went back into the hotel room. The applicant followed and pushed her onto the bed. Pinning her hand down onto the bed, he began to kiss and touch her, before pushing his fingers into her vagina. She begged him to stop, telling him “this is not okay”. He continued, saying he wanted something back, and the room had been expensive.
Ms V became very frightened. She managed to get the applicant to stop by asking for another drink.
Sometime after that, Ms Y observed Ms V emerge from the bathroom; Ms V said that she had to go, telling Ms Y that the applicant had done something “very inappropriate to her and she cannot withstand, so she wants to leave”. She gathered her things, including two cameras, and made to leave.
Ms Y told the applicant that she and Ms V were leaving, but he tried to stop them from departing, telling Ms Y that they could not leave until they paid half the cost of the room. He grabbed Ms V’s cameras, and said he would not return them if they left.
When Ms Y challenged the applicant, saying that she and Ms V had never said they would pay for part of the cost of the room, the applicant said that, in taking the room, he had told them that they would have “fun”, and this meant that they had agreed to have sex with him. Ms Y said “fun” did not mean “sex”, but the applicant insisted that, as the women had not fulfilled their promise, they had to pay half the cost of the room or he would “sue” them. They argued about “the legal” for some time.
As they argued, Ms V got her possessions. Although she was distressed and wanted to leave, she went into the bedroom to sleep. She did not know how to get back to the hostel, or whether she could get transport at a late hour.
The applicant repeatedly said to Ms Y that he would “charge” them if they did not satisfy him and pay the fee for the room. He offered to allow them to leave if Ms Y kissed him, and so she allowed him to kiss her neck. However, when she and Ms V then made to leave, the applicant again stopped them, telling Ms Y they would split the room fee and then the women could leave. When Ms Y protested that she had just done what he had asked so that they might be allowed to leave, the applicant grabbed her, and tried to force her hand down onto his penis (count 3).
She struggled and tried to push him away, but he continued to threaten to sue them. Removing his pants, he told Ms Y that she had to “touch him to help him”. She understood him to mean that if she touched his penis until he ejaculated, she and Ms V could leave the hotel room. Ms Y took out her mobile phone and made a voice recording of “the deal”, being that if she “used [her] hand” there would be “no more payment” and “no more legal”.
She lay with the applicant on the bed and stroked his penis, but he did not ejaculate. He then accused her of not fulfilling the deal and pushed himself onto her, trying to remove her underpants with force. She resisted, but was not able to prevent the applicant from licking her vagina through her underpants (count 4), or from putting his hand on her bottom underneath her underwear (count 5).
Ms Y struggled against the applicant and managed to push him off her. Telling him to “fuck off”, she said they should go to reception and she would pay for the room. She went downstairs to reception with the applicant.
On reaching the reception desk, the applicant approached the clerk and said that they wished to split the room cost. As he spoke to the clerk, Ms Y stood behind him trying to mouth words to the clerk to alert him to the fact that she needed help. A staff member saw her and asked what had happened. She told the person that the applicant had forced them “to have sex with” him. Hotel staff said the police would be called. The applicant left the hotel immediately.
Police were called and attended the hotel. Ms Y and Ms V gave statements about the events of the night, and provided access to their mobile phones which contained messages exchanged and photographs and films taken during the evening.
The applicant sent Ms Y a message the following day, “Sorry I was too much drunk last night. Hopefully you did check out?”.
Staff from the hotel gave evidence confirming that a man had inquired about and ultimately taken a room there at around 9pm, providing his credit card for pre-payment authorisation and allowing his identification document to be copied. The women with him appeared happy.
A little after 4am on 27 December 2017, the man had returned to reception with one of the women and asked to split the bill. The cost was worked out and the man turned to the women and told her she had to pay half. She stepped back and staff noticed that she appeared distraught. One staff member observed that, as she stood behind the applicant, she was mouthing the words “help me” or “can you please help me”. She appeared scared. As she went to hand over her credit card, she said “he made me do things”. She had tears in her eyes.
One of the staff said that he would have to call the police. The male said that he didn’t care as he was from a wealthy family and was above the law. However, when another staff member went to the telephone to make the call, the applicant walked out of the hotel. Staff called after him but he continued to walk away.
The applicant was identified through the check-in documentation. Police went to his Harris Street Ultimo address and arrested him. In evidence it was confirmed that the applicant, who was an international student in Australia studying for a doctorate in nursing, had no criminal record. His English language skills were regarded by a person connected with his doctorate studies as excellent.

The Application before this Court

Ground 1: “That [the trial judge] erred in failing to warn the jury (or adequately warn the jury) against using the offences of one complainant towards proof of the guilt of the appellant of offences involving the second complainant, and vice versa”

Given that the allegations made by the complainants related to a connected set of events occurring at the same time, the matters proceeded as a joint trial. In those circumstances, the applicant complains that the trial judge failed to adequately warn the jury against “using the offences of one complainant (particularly the element of lack of consent) towards proof of guilt […] of offences involving the second complainant”.
The Court was referred to R v Mitchell (Court of Criminal Appeal (NSW), 5 April 1995, unrep) (“Mitchell”), where Gleeson CJ (with the concurrence of Cole JA and Sperling J) accepted that:

“[…] the trial judge was obliged to warn the jury in clear terms against using the evidence of one complainant towards proof of the guilt of the appellant of offences involving the other complainant.”

Referring to R v Mayberry [2000] NSWCCA 531 (“Mayberry”), a decision of this Court (Beazley JA, Greg James and Kirby JJ) in which Mitchell was applied, the applicant submitted that the distinction between the evidence of the two complainants was not drawn in clear and concise terms by the trial judge.
In determining this ground, it must firstly be noted that there is no “Mitchell direction” that must invariably be given in any trial where allegations made by more than one complainant are tried together. In each of Mitchell and Mayberry, the problems with the directions given to the jury went beyond a failure to direct the jury not to consider the evidence of one complainant when determining a charge concerning another complainant. It was that failure, coupled with a tendency in each summing up to consider the evidence of all complainants as a “job lot” that wrought the mischief complained of.
There were two complainants in Mitchell, both being the daughters of the woman with whom Mr Mitchell was living. Although the complainants were related, there was no commonality between the alleged offences, and no obvious reason to try the charges relevant to each together. However, concoction was a live issue, with the case advanced for Mr Mitchell raising the prospect that the complainants had colluded together with their father to falsely accuse him, as a means of striking at him and their mother. In that way, it was in Mr Mitchell’s interests for the matter to proceed as a joint trial.
The trial judge did not direct the jury against using the evidence of one complainant towards proof of the guilt of the appellant of offences involving the other; but further, his Honour “made a number of observations which would have encouraged the jury to use the evidence” as similar fact evidence, as if the evidence of each complainant was admissible as proof of charges relating to the other.
The position was similar in Mayberry. The complainants were the stepsons of Mr Mayberry. Each made a complaint of various sexual assaults committed by him some years before. Although none of the acts alleged had occurred in the presence or with the knowledge of the other complainant, the charges were tried together. As with Mr Mitchell, Mr Mayberry’s case was one of concoction; he asserted that together the complainant’s had fabricated the allegations to support their mother in a bitter property dispute between her and him.
The trial judge did not caution the jury against using the evidence of one complainant in support of the allegations made by the other but, again, his Honour went further, and treated the charges in a global way, grouping the charges together by type so that charges and evidence involving separate complainants were conflated.
In other, later, decisions of this Court, it has been held that a direction of the kind enunciated in Mitchell will be required only where the circumstances of the particular case warrant it; it is not a direction of universal application in sexual assault trials concerning multiple complainants.
In R v RCK (NSWCCA, 12 December 1995, unrep) this Court (Gleeson CJ, Studdert and Dowd JJ) made clear that a direction in accordance with Mitchell was not required in all such trials. In RCK, the allegations made by the two complainants were greatly separate in time, and the trial judge’s directions made clear that the Crown relied only upon the individual evidence of each complainant to prove those charges relevant to the particular complainant.
In R v Collins [2001] NSWCCA 386, the Court (Mason P, Sully J, Newman AJ) held (at [104]) that it was not appropriate to take the direction referred to in Mitchell out of context and “elevate it to a principle of law that would require the giving of a direction” of the sort contended for here. Consideration was also given to Mayberry, with Mason P observing at [108]:

“Nevertheless, it is significant in my view that Beazley JA proceeded to examine the summing up as a whole to determine whether the appellant in Mayberry might have been deprived of a fair trial. She looked at passages emphasising the importance of considering each charge separately. As in Mitchell, there were aspects of the summing up which effectively encouraged the jury to consider the totality of the evidence in the case when coming to their decisions. At one stage the charges were referred to as a "job lot". Furthermore, when the trial judge in Mayberry dealt with the essential elements of the offences he dealt globally with the counts spanning the two complainants. The charges were lumped into categories where the common elements were emphasised in circumstances that essentially merged the separate cases relating to the two complainants.”

In RRS v R [2013] NSWCCA 94; 231 A Crim R 168 it was also held that a Mitchell/Mayberry direction was not mandatory in sexual assault trials involving more than one complainant.
Whilst the applicant also relies upon a Western Australian decision of Cook v R (2000) 22 WAR 67; 100 A Crim R 117, that authority does not detract from the principles given in Collins and RRS.
It is not enough, then, to complain that a “Mitchell direction” was not given; careful consideration must be given to the whole of the summing up to determine whether the trial judge’s directions gave rise to a miscarriage of justice, in the context of the trial as it was conducted before the jury.
Having regard to the way in which the parties put their respective cases to the jury, and considering the whole of the directions given to the jury about the approach to be taken to the evidence of Ms Y and Ms V, I am not persuaded that this ground is made out.
At trial, the Crown did not contend that Ms Y had witnessed the assault upon Ms V; or that Ms V could give evidence of the particular allegations charged against the applicant relevant to Ms Y. Rather, the allegations of Ms Y with respect to counts 1, 3, 4, and 5 were advanced as distinct from the allegation of Ms V with respect to count 2, with each count reliant upon the evidence of the particular complainant, albeit with all of the allegations arising from a connected set of events, and in circumstances where each complainant could give evidence confirmatory of some aspects of the other’s testimony.
This was a feature of the Crown case that was relied upon by the applicant to his advantage: in his closing address to the jury, he pointed to the fact that neither woman had observed the criminal acts alleged by the other, and that there were a number of inconsistencies between their evidence, as matters which undermined the credibility of the account of each.
The trial judge at all times distinguished between the counts relating to Ms Y and that relevant to Ms V. He instructed the jury at an early point in the summing up that four counts on the indictment referred to the applicant’s alleged conduct with Ms Y, whilst the remaining count referred to his conduct with Ms V. His Honour told the jury that, although there were multiple counts in the indictment, the obligation on its members was to consider each charge individually. In that context, the jury was given a direction concerning the evidence of Ms Y consistent with that suggested in R v Markuleski 52 NSWLR 82; [2001] NSWCCA 290, a direction that did not apply and was not given with respect to Ms V’s evidence.
In directing the jury as to the elements of the five counts that the Crown was obliged to prove beyond reasonable doubt, the trial judge dealt firstly with the allegations relating to Ms Y, and then dealt with the single count relating to Ms V. He told the jury that he would put “count 2 aside and deal with that separately because it is a different complainant and a different offence” (Tcpt, 2 April 2019, p 9) and dealt with the two sets of charges in precisely that way.
Turning to the evidence of each complainant, and in a context where the jury was told that it did not have to believe Ms Y when considering the charge relating to Ms V, and vice versa, the trial judge directed the jury that:

“[…] you must examine carefully their evidence and satisfy yourselves that each is a reliable witness. That is that each is an honest witness and a witness who is accurate in vital respects. You must examine and evaluate their evidence in light of any criticisms that have been made of it. It is only after such careful scrutiny and evaluation that if you are satisfied, beyond reasonable doubt, that that evidence is reliable, that you could consider verdicts of guilty. This direction follows from the high onus and high standard of proof that is placed upon the Crown. You could not find the accused guilty of the offences unless you are satisfied, beyond reasonable doubt, that each of the complainants is an honest and reliable witness”.

His Honour then turned to the evidence, and dealt with that of each complainant separately. He began by considering the evidence relevant to Ms Y, particularising the acts relied upon by the Crown to establish each count of indecent assault. He also pointed out some of those matters raised by the applicant concerning the reliability of Ms Y, including an inconsistency between the evidence of Ms Y and Ms V relevant to proof of absence of consent.
The summing up was not completed by the end of the day on 2 April 2019, and continued on 3 April 2019. That morning his Honour returned to the evidence of Ms Y, and reminded the jury members of the terms of the Markuleski direction he had previously given.
The trial judge next turned to the case relevant to Ms V, and again emphasised the requirement that, to find the offence alleged by her proved, a careful assessment must be made of Ms V’s reliability. In that regard, his Honour set out some of the criticisms made of her evidence by the applicant’s counsel in closing address, and pointed to some of the inconsistencies between the evidence of Ms V and Ms Y that had been highlighted by him. His Honour directed the jury:

“These matters require that you approach [Ms V’s] evidence with caution because these factors may affect the reliability of her evidence. Unless you are satisfied beyond reasonable doubt that she is both an honest and accurate witness in the account she has given you, you cannot find the accused guilty. Before you can convict the accused, you should therefore examine the complainant’s evidence very carefully in order to satisfy yourself that you can safely act upon that evidence to the high standard required in a criminal trial, that is beyond a reasonable doubt.” (Tcpt, 3 April 2019, p 5)

The jury was again instructed as to the need to consider each of the five counts on the indictment separately. The trial judge continued:

“[…] the Crown case in relation to each of the counts relies upon, is the evidence of the complainant.” (Tcpt, 3 April 2019, p 10)

In circumstances where each of the complainants had seen collateral conduct of the applicant relevant to proof of the charge or charges alleged by the other, his Honour drew that aspect of the matter to the jury’s attention, again raising an inconsistency in the evidence of the two witnesses in that context. He said:

“The evidence of [Ms Y] is, however, also relevant to the count involving [Ms V]. For example, the evidence of [Ms Y], a Crown witness, was led to the effect of consensual kissing between the accused and [Ms V] on at least three occasions, possibly four depending on what you make of the mention of the bathroom.
That was contradicted by [Ms V]. Thus the evidence led by the Crown is not consistent. The point made by the accused is that the two Crown witnesses, the complainants, are saying things about the same events. Viewed in this way the accused submits that any unreliability that you may determine in respect of the evidence relating to the four [Y] counts may be relevant to the count concerning [Ms V].”

His Honour may have given the jury a similar direction concerning Count 2, but the transcript records a portion of what was there said as “not transcribable”.
Although there is no transcript of it, it appears that both parties asked the trial judge to give a fuller summary to the jury of each of the closing addresses prior to the jury being asked to retire to consider its verdicts, and his Honour did that. There was no request from counsel for the accused for any further direction to be given to the jury as to the approach to be taken to the evidence of the complainants, and how that evidence was relevant to the specific counts charged. Rule 4 thus applies to this ground.
The fact that no request was made to the trial judge for any further or other direction is a relevant consideration. As Yeldham J observed in R v Tripodina [1988] 35 A Crim R 183, at 191:

“[…] as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done.”

It is very probably the case that the applicant’s counsel, fully cognisant of the way in which the trial had been conducted before the jury, and able to observe the jury for himself, did not see the need for anything further to be said.
In the way in which the trial judge structured the summing up, and gave the jury directions of law, there could have been no confusion in the minds of the jurors as to the evidence available to go to proof of the sexual acts alleged by each complainant, and the question of the absence of consent to those acts. That was doubtless plain to counsel for the applicant.
Both parties had approached the trial on the basis that the only evidence capable of proving the elements of the individual charges was that of the complainant referred to in each. Whilst some aspects of the evidence of each witness went to peripheral matters concerning the other, and the jury were so directed, nothing said by his Honour could have left the jury feeling confused about what constituted proof of the essential elements of the five charges.
The applicant’s argument misconceives the applicability of a Mitchell direction. In the particular circumstances of this trial, such a direction was not essential, and no miscarriage of justice was occasioned by its absence.
Where rule 4 applies, leave to advance a ground of appeal reliant upon an “error” in the directions to the jury which was not raised at trial will be given only where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. No such departure has been established here. I would not grant leave to advance this ground.

Ground 2: “That His Honour’s summing up to the jury was unbalanced in that it failed to give sufficient weight to the discrepancies between the evidence of each of the two complainants, particularly as to the issue of consent of the complainants or either of them in relation to certain conduct of the appellant”

The applicant’s submissions in support of this ground are brief. They complain of a lack of balance in the summing up because of the trial judge’s “failure” to “give sufficient weight” to the inconsistencies between the evidence of the two complainants about matters common to the testimony of each. The only example of this imbalance selected by the applicant to highlight in submissions concerns the kiss between the applicant and Ms V that is summarised in brief at [16].
It is not clear to me what is meant by the applicant in contending that the trial judge did not give “sufficient weight” to evidence given by each of the two complainants that was or may have been perceived to be inconsistent with that of the other. Of itself, the ground suggests that at least some reference was made in the course of the summing up to asserted inconsistencies in the evidence. How his Honour was to “give weight” to the evidence is not articulated.
It must firstly be noted that there is no obligation on a trial judge to slavishly summarise all of the evidence given at trial. Section 161 of the Criminal Procedure Act 1986 (NSW) relieves a trial judge of that burden “if of the opinion that, in all the circumstances of the trial, a summary is not necessary”.
The trial judge made it plain to the parties and to the jury that he did not intend to summarise all of the evidence, but would touch upon aspects of it in giving directions of law, and in referring to the closing addresses for the Crown and the applicant. He told the jury that a transcript of the evidence could be provided, and the jury in fact asked for, and was supplied with, the transcript. Arguably, the provision of the transcript is a more efficient means of reminding the jury of the testimony of individual witnesses than is an oral summary. The former is complete, ordinarily entirely accurate, and it does not weary the jury with the weight of the spoken word. It provides a ready resource in the jury room to which the jurors can return, and from which they can extract those aspects of the oral evidence that is of most relevance to their deliberations.
This was a relatively short trial. The issues were narrow and the addresses from the parties had highlighted the evidence most salient to the respective cases. There was no need for the trial judge to detain the jury as he went through the evidence at length.
That there was no obligation on his Honour to “give weight” to one aspect of the evidence over another should not need to be stated. It is not the role of the trial judge to advocate for either party. Even in an era when the transcript of a trial judge’s summing up may be pored over in search of error through which to impugn a jury’s verdict, it is not permitted for a trial judge to argue an accused person’s case for him or her.
In summing up to a jury, the role of a trial judge is to provide the jury with the legal principles necessary to determine the issues to be decided, referring to the evidence where necessary to explain those principles in the context of the trial. Further, the trial judge must put the respective cases for the Crown and the accused fairly and accurately: Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (at 561). That need not be done at length, or by repeating every argument made by counsel, and referring to every piece of evidence to which counsel drew the jury’s attention.
As any trial lawyer will appreciate, it can be an arduous task for jurors to sit confined in the jury box, often for what might seem like endless hours, listening to first addresses and then the trial judge’s summing up. Lest the jury be wearied beyond the capacity of concentration, it is generally sensible for the summing up to be as concise as is possible. As Wood J (as he then was) observed in R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unrep):

“Simple and concise summing up which leave the jury in a position to come to a verdict upon a proper basis should be the aim. Two things should not be overlooked. The first is that by the time of the summing up the jury has had the benefit of addresses from the Crown and Counsel for the accused which can be assumed to have focused on the factual issues, and advanced reasons for the jury concluding that the guilt of the accused either has or has not been proved beyond reasonable doubt. The second is that jurors are expected to apply their common sense and experience of life in assessing the evidence and deciding the factual issues. It should therefore not be necessary, certainly in routine cases, for there to be extensive reference to the evidence or the arguments advanced by Counsel. Nor should there be any need to emphasise the obvious or to underline what really are matters of common sense. The aim of Judges should be to identify and summarise simply and concisely for the jury the issues which arise in the trial, the legal principles to be applied to those and no other issues, and the relevant evidence, so as to ensure that the jurors direct their minds to the true questions to be decided before a verdict is reached.”

In this case, the trial judge discharged his obligation. In doing so, he did not omit reference to the inconsistencies in some aspects of the evidence of the two complainants; indeed, on one view, his Honour took some trouble to refer the jury to those matters which were relevant to its assessment of the reliability of the two complainants. Specific reference was made to the kiss involving the applicant and Ms V which prompted Ms Y to ask Ms V if she, or it, “was okay”. His Honour noted the differing versions of that event given by the witnesses, concluding with a summary comment:

“[…] it is important that the clear evidence of [Ms V] was that she did not say that it was okay in the way that [Ms Y] said she did.” (Tcpt, 2 April 2019, p 19)

The following day, on 3 April 2019, his Honour returned to that subject, in referring to the case relevant to count 2. He again pointed out the inconsistency between the evidence of the complainants, and specifically highlighted the submissions of the applicant’s counsel on that point.
Reference was also made to inconsistencies between the testimony of Ms Y and Ms V as to chronology, with the trial judge noting that the differences were sufficiently marked that “it is difficult to strictly compare them”. His Honour also pointed out other inconsistencies, such as differences between what each woman had said about other acts of kissing between Ms V and the applicant.
As to the arguments of the parties, the trial judge gave a comprehensive summary immediately before asking the jury to retire to consider its verdicts, in which he reminded the jury of the applicant’s case, and of his contention that the accounts given by each complainant of the evening in question were so different as to point conclusively to the unreliability of each. His Honour pointed to some of the evidence that had been highlighted by the applicant in that regard.
Considering the whole of the summing up, I do not conclude other than that his Honour put the applicant’s case fully and fairly. There was no lack of balance of which the applicant can legitimately complain.
It is reasonable to conclude that this was also the view of the applicant’s counsel at trial, since there was no application to the trial judge for anything further to be said to the jury on the subject. Rule 4 applies; I would not grant leave to the applicant to advance this ground.

Ground 3: “That pursuant to s 6 of the Criminal Appeal Act 1912 (NSW) the verdicts were unreasonable”

Other than referring the Court to the test to be applied when considering a ground of appeal of this nature, the applicant’s submission in support of this proposed ground was brief, and relied entirely on the evidence of the kiss referred to in relation to ground 2. He argued:

“The unchallenged inconsistency between the evidence of [Ms Y] and [Ms V] as to whether [Ms V] verbally indicated that she had consented to being kissed by the Accused is so fundamental to the guilt or innocence of the Accused especially when taken in the context of the other inconsistencies in the evidence of the two complainants that it would be unreasonable for the Jury to come to the verdict that they did.”

I do not regard the evidence of this kiss and any conversation about it, and the inconsistencies between Ms V’s evidence of it and Ms Y’s evidence on the same topic, as having the significance for which the applicant contends. Even on the basis that the jury must or should have accepted that the kiss was with Ms V’s consent, and the conversation about it as Ms Y said, there is a vast difference between consenting to a kiss, and consenting to digital intercourse. It would have been entirely open to the jury to conclude that Ms V was a willing participant in the kiss witnessed by Ms Y, or at least that she was prepared to permit it, and said so to Ms Y, but that she did not agree to anything beyond kissing.

Such inconsistencies as there were in the evidence were all highlighted to the jury by the applicant in his counsel’s closing address to the jury. As noted earlier, the trial judge also referred to the variation in the accounts of the two women as a feature to which the jury should have regard in assessing whether either or both of Ms Y and Ms V could be accepted as reliable witnesses. The jury would have well understood the differences in the accounts given by the women, and the possible significance of the variations in determining whether the Crown had proved its case to the high standard required by the criminal law. This issue was at the heart of the trial, and addressed at the conclusion of the evidence by the Crown, the applicant, and the trial judge. It would have been a significant consideration for the jury.
However, it did not dictate that the jury must have entertained a doubt as to the reliability of each complainant’s evidence as to the essential elements of the five counts on the indictment. Although the inconsistencies between the evidence of the two complainants concerning the kiss may have been a consequence of either or both being untruthful, equally, there were other available explanations which did not require the jury to reject the whole of the evidence of each witness.
There was clear evidence both that the complainants were intoxicated by the time of their arrival in the hotel room, and that each lacked proficient English language skills in communicating with the applicant and with each other.
Ms Y gave evidence that, from the outset of their meeting, the applicant supplied her and Ms V with alcohol. After they left the bar near the Opera House, the applicant bought a bottle of spirits, soft drink to mix with it, and plastic cups, and mixed drinks himself which he gave to the complainants. Ms Y deposed that the drinks were very strong, to the point where she surreptitiously disposed of at least one of the drinks the applicant gave her. By the time they reached the hotel room, both young women were intoxicated. They became more so during the course of events thereafter, as each continued to drink.
The evidence given at trial by each complainant was clearly affected by that intoxication, and that fact could readily explain the differing accounts of the women as to the kiss and the conversation concerning it. It was open to the jury to conclude that at least some of the differences between the evidence of each arose from the level of intoxication of each on this night. That did not mandate that the evidence each gave as to the acts the subject of the charges be rejected.
The level of English language skills that each complainant had is another feature relevant to the assessment made of the evidence of each by the jury. It was at least open to the jury to conclude that the apparent differences in the account of each of the kiss between Ms V and the applicant on the lounge had their origins in miscommunication, rather than in dishonesty or inaccuracy.
Ms Y deposed that Ms V had responded “yeah, okay” when she asked her about the kiss after the event: “Are you okay with that kissing”. Ms V denied having said that the kiss was “okay”. If the jury concluded that something along those lines had been said, it was open to its members to reason that the meaning given by each woman to the question and answer may have been different, with Ms Y understanding Ms V’s “okay” to mean that she was “okay” with the kiss, whilst Ms V intended to indicate that she was okay after the kiss. Either reading is, in my opinion, open on the whole of the evidence.
Regarding the evidence in that way, the significance of the conversation about the kiss falls away.
In any event, the jury was well able to assess the significance or otherwise of this evidence; it does not of itself point to a conclusion that the verdicts returned by the jury were unreasonable.
The applicant does not point to any other aspect of the evidence that would lead this Court to conclude that the verdicts are unreasonable. Having considered the whole of the evidence I have not identified anything that causes me to come to that view. Apart from the evidence of each complainant as to the essential elements of the relevant charge or charges, which in each instance was, overall, cogent, there was other evidence that supported the account of each.
There was evidence of immediate complaint from Ms V to Ms Y following the act of digital penetration, and she was observed by Ms Y at the time and thereafter to be upset and distressed. Ms Y made complaint to hotel staff as soon as she could about what had happened to her, and about what she understood had happened to Ms V, and she too was observed to be in a distressed state. Beyond that, the observations of the hotel staff of the complainants and of the applicant gives support to the truthfulness of the allegations made against the applicant.
Overall, the evidence before the jury was not such as to require this Court to interfere with the verdicts returned by the jury. Whilst there were matters raised by the applicant before the jury that went to the assessment to be made of the most critical evidence, that of the complainants, the jury was well able to make that assessment, and enjoyed a significant advantage over this Court in doing so. Having regard to the whole of the evidence, the verdicts returned by the jury were properly open.
Although I would grant leave to advance this ground, I would dismiss it.
The orders I propose are:

Refuse leave to advance grounds 1 and 2,

Grant leave to advance ground 3,

Dismiss the appeal against conviction.

**********

Decision last updated: 18 June 2020

Medium Neutral Citation:	Alharbi v R [2020] NSWCCA 130
Hearing dates:	29 May 2020
Date of orders:	18 June 2020
Decision date:	18 June 2020
Before:	Hoeben CJ at CL at [1] Harrison J at [2] Wilson J at [3]
Decision:	1. Refuse leave to advance grounds 1 and 2; 2. Grant leave to appeal on ground 3; 3. Dismiss the appeal
Catchwords:	CRIMINAL LAW – sexual assault – indecent assault – two complainants – conviction following trial – question of adequacy of directions to jury as to use to be made of evidence of one complainant relevant to charges concerning another – whether a “Mitchell direction” was required – whether trial judge gave “sufficient weight” to inconsistencies in the evidence of the complainants – whether inconsistencies between evidence of complainants should have raised a doubt – whether convictions unsupported by the evidence
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Cook v R (2000) 22 WAR 67; 100 A Crim R 11 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 R v Collins [2001] NSWCCA 386 R v Markuleski 52 NSWLR 82; [2001] NSWCCA 290 R v Mayberry [2000] NSWCCA 531 R v Mitchell (Court of Criminal Appeal (NSW), 5 April 1995, unrep) R v RCK (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Tripodina [1988] 35 A Crim R 183 R v Williams (Court of Criminal Appeal (NSW), 10 October 1990, unrep) RRS v R [2013] NSWCCA 94; 231 A Crim R 168
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Muaddi Fahad Alharbi (Applicant) Regina (Respondent)
Representation:	Counsel: B Levet (Applicant) E Balodis (Crown) Solicitors: Algalele Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/391396
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 April 2019 Before: Priestly SC DCJ File Number(s): 2017/00391396