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Goundar v R

Goundar v R

Case [2024] NSWCCA 45 5 April 2024

Appeal

Jurisdiction

Breach of Contract

Admissibility of Evidence

Causation

Negligence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Goundar v R [2024] NSWCCA 45
Hearing dates: 22 February 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Before: Davies J at [1]
Hamill J at [110]
Sweeney J at [134]
Decision:
(1) Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021(NSW) in relation to grounds 1 and 3.
(2) Grant leave to appeal ground 2.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – where parties had been drinking heavily all day – where complainant was in and out of consciousness – where applicant stopped attempted anal penetration when asked – applicant resumed vaginal penetration – complainant said “Stop” multiple times – non-consensual penile/vaginal intercourse continued for around two minutes – where complainant made an immediate complaint to her mother – other early complaints – where mother’s evidence disclosed an alleged complaint about anal penetration inconsistent with other evidence the complainant gave – whether trial judge erred by failing to direct jury on complaint evidence given by the complainant’s mother – where Crown case never concerned anal intercourse – trial judge’s summing up made clear penile/vaginal intercourse formed the basis of the charge – jury could have had no doubt what act constituted the offence – no miscarriage of justice – leave to appeal refused
CRIME – appeals – appeal against conviction – unreasonable verdict – whether by reason of inconsistencies and discrepancies the jury ought to have had a doubt – “inconsistencies” entirely explicable by reason of the complainant’s intoxication – central allegation consistent since time of first complaint – greater detail emerged in subsequent complaints – immediacy and distress of first complaint sufficient in nature and quality to satisfy jury beyond reasonable doubt
CRIME – appeals – appeal against conviction – whether trial judge erred by failing to direct on the accuracy and reliability of the complainant’s account – where trial judge gave standard direction in accordance with s 293A of the Criminal Procedure Act – where applicant’s trial counsel sought no further direction – direction now proposed adds nothing to what the trial judge said – no miscarriage of justice – leave to appeal refused – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) s 61I
Evidence Act 1995 (NSW)
Criminal Procedure Act 1986 (NSW) ss 293A, 294AA
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Greenhalgh v R [2017] NSWCCA 94
Hanna v R [2023] NSWCCA 182
Kumar v R [2023] NSWCCA 156
Latu v R [2023] NSWCCA 19
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Rubinstein v R [2023] NSWCCA 288
Williams v R [2021] NSWCCA 25

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goundar v R

Details

AGLC: Goundar v R [2024] NSWCCA 45
Case: [2024] NSWCCA 45
Decision Date: 05 April 2024

CaseChat Overview and Summary

In the case of Goundar v R, the applicant, Goundar, appealed against his conviction for one count of sexual intercourse without consent. The incident occurred after both parties had been drinking heavily all day, and the complainant was in and out of consciousness. Goundar stopped an attempted anal penetration when asked but resumed vaginal penetration despite the complainant's repeated requests to stop. The non-consensual act continued for around two minutes, and the complainant immediately complained to her mother and made other early complaints. However, the mother's evidence about an alleged complaint about anal penetration was inconsistent with other evidence provided by the complainant. The central issue for the court was whether the trial judge erred by not directing the jury about the complainant's mother's evidence. The Crown case never concerned anal intercourse, and the trial judge clearly stated that the penile/vaginal intercourse formed the basis of the charge. The jury could have had no doubt about what act constituted the offence.

The court held that the inconsistencies in the evidence were entirely explicable by the complainant's intoxication. The central allegation had been consistent since the time of the first complaint, and greater detail emerged in subsequent complaints. The immediacy and distress of the first complaint were sufficient in nature and quality to satisfy the jury beyond reasonable doubt. The court also found that the trial judge gave a standard direction in accordance with s 293A of the Criminal Procedure Act, and the applicant's trial counsel did not seek any further direction. Any proposed direction now would add nothing to what the trial judge had said. Therefore, the court concluded that there was no miscarriage of justice and refused leave to appeal, ultimately dismissing the appeal.

The final orders of the court were that leave to appeal was refused, and the appeal was dismissed. The conviction of the applicant for one count of sexual intercourse without consent was upheld. The court found no errors in the trial judge's direction or the jury's verdict and considered the evidence provided by the complainant to be sufficient to convict the applicant beyond reasonable doubt.

Orders