Hossain v The King

[2023] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hossain v R [2023] NSWCCA 18

Hearing dates:

12 October 2022

Date of orders:

17 February 2023

Decision date:

17 February 2023

Before:

Basten AJA at [1];
Davies J at [2];
McNaughton J at [5]

Decision:

(1) Time in which to seek leave to appeal extended to 22 April 2022;

(2) Leave granted to appeal against conviction;

(3) Appeal dismissed.

Catchwords:

CRIME – appeal – conviction appeal – unreasonable verdict – whether inconsistencies in the complainant’s evidence were so grave that her account could not be believed beyond reasonable doubt – whether verdict of guilty on one count was inconsistent with verdict of not guilty on the other counts – sexual intercourse without consent – discrepancies in evidence did not undermine complainant’s core account of the allegation – verdicts clearly reconcilable – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) ss 37, 61I, 61J

Criminal Appeal Act 1912 (NSW) ss 5, 6

Evidence Act 1995 (NSW) s 38

Cases Cited:

AS v R [2022] NSWCCA 291

Crickitt v R [2018] NSWCCA 240

Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21

Dellow v R [2020] NSWCCA 301

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Nadin(a pseudonym) v R [2022] NSWCCA 284

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Pethybridge v R [2020] NSWCCA 185

RA v R [2020] NSWCCA 356

Reed v R [2006] NSWCCA 314

Roos v R [2019] NSWCCA 67

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Z (a pseudonym) v R [2022] NSWCCA 8

Texts Cited:

Richard J. McNally, Remembering Trauma (1st ed, 2005, Cambridge, Harvard University Press) at 48-62

Category:

Principal judgment

Parties:

Jamal Hossain (Applicant)
Rex (Respondent)

Representation:

Counsel:
E Anderson (Applicant)
A Bonnor (Respondent)

Solicitors:
Ivy Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/40893

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, publication of the name(s) of, or any matter which could identify the victim and children are prohibited.

Pursuant to s 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 October 2020 (Verdict)

Before:

Woodburne SC DCJ

File Number(s):

2019/40893

Judgment

1. BASTEN AJA: I agree with McNaughton J.

2. DAVIES J: I have had the advantage of reading in draft the judgment of McNaughton J. From my own examination of the evidence, I am entirely persuaded that the jury should not have had a reasonable doubt about the guilt of the applicant. 

3. Whilst there were certainly some discrepancies in the complainant’s evidence, these were nothing more than might be expected given the two year period between the events complained of and the trial, and her level of inebriation at the time of the events.  What is significant is that she made a complaint of rape as soon as she emerged from the bushes, she repeated that complaint to her partner SM at the house shortly thereafter, in the triple-0 call, and to SC Foggorty shortly thereafter.  The extent of her distress immediately afterwards and back at the house provided further support. 

4. I agree with the reasons of McNaughton J in relation to both grounds of appeal, and with the orders her Honour proposes.

5. McNAUGHTON J: On 29 October 2020, following a trial before Woodburne SC DCJ and a jury, the applicant (Jamal Hossain) was found guilty of one offence of sexual intercourse without consent arising out of a course of events which took place over a short period of time on the evening of 25 December 2018 at a park in South Western Sydney.

6. The applicant was acquitted of two other counts. The three counts on the indictment and the verdicts returned by the jury were as follows:

1. Count 1: On 25 December 2018, the applicant did intentionally choke the complainant without her consent contrary to s 37(1A) of the Crimes Act 1900 (NSW) (‘Crimes Act’) – verdict of not guilty;

2. Count 2: On 25 December 2018, the applicant did have sexual intercourse with the complainant without her consent, and knowing that she did not consent to the sexual intercourse, in circumstances of aggravation, namely, that the applicant recklessly inflicted actual bodily harm to the complainant at the time contrary to s 61J(1) of the Crimes Act – verdict of not guilty;

3. Count 3 (in the alternative to count 2): On 25 December 2018, the applicant did have sexual intercourse with the complainant without her consent and knowing that the complainant did not consent to the sexual intercourse contrary to s 61I of the Crimes Act – verdict of guilty.

7. On 5 March 2021, the applicant was sentenced to a term of imprisonment of six years and six months, with a non-parole period of three years and eight months. There is no complaint made about the sentence imposed on the applicant.

8. The applicant seeks leave to appeal on the following grounds:

1. The verdict of guilty in relation to count 3 was unreasonable and cannot be supported having regard to the evidence, because on the whole of the evidence, it was not open to the jury to be satisfied beyond a reasonable doubt;

2. The verdict of guilty in relation to count 3 was inconsistent with the verdicts of counts 1 and 2.

9. Leave to proceed with the appeal out of time was sought by the applicant. The Crown does not oppose the extension of time on the basis of adequacy of the explanation, but submits that if merit is not found, the extension of time and leave to appeal should be refused.

10. For the reasons provided below, I am of the view that the appeal should be dismissed. Given the nature of the grounds of appeal, it is necessary first to summarise the evidence adduced at the trial, as well as the summing up provided by the trial judge to the jury.

Overview of evidence

11. The evidence at trial was presented over five days. By way of brief overview, as at the date of the incident on 25 December 2018, the complainant was aged 16. The complainant had a female friend, MB, who was aged 15. MB was friends with a man named Shamsul Alam (“Shamsul”), who in turn was friends with the applicant who was aged 35. The complainant met the applicant through MB and Shamsul.

12. The complainant had met the applicant on at least two other occasions prior to the events of 25 December 2018 – both times in the company of MB and Shamsul.

13. On 25 December 2018, the complainant and her girlfriend at the time, SM, visited MB’s house in Campsie (“the Campsie house”). They consumed alcohol throughout the day, and in the evening the complainant and MB went with Shamsul and the applicant to Wiley Park, which is a park within the suburb of Wiley Park in South Western Sydney (“Wiley Park”). While they were at the park, they shared a bottle of vodka and at one stage, the applicant and the complainant went to a nearby bush area where the incident in dispute occurred.

14. After the incident, the complainant left the bush area and re-joined MB and Shamsul. A complaint was made to MB. The complainant and MB then returned to the Campsie house and a complaint was made to SM and MB’s older sister, BB (who is seven years older than MB). The complainant, MB, BB and Shamsul gave evidence at trial. SM did not give evidence.

15. Very late on 25 December 2018, a call was made to triple-0 and police attended the Campsie house. A recorded interview with the complainant was conducted by Senior Constable Shane Foggorty (“SC Foggorty”), who attended the Campsie house at around 11:35pm following the triple-0 call. An edited version of this interview was tendered and played at trial.

16. The complainant then attended St George Hospital on two occasions after the incident. On the second occasion, being 27 December 2018, she was examined by nurse Patsy Jiang. Ms Jiang gave evidence at trial.

17. On 9 February 2019, the applicant was cautioned and arrested. He agreed to participate in an electronically recorded interview. That interview was tendered and played to the jury. Following his interview, the applicant was charged.

18. The respondent’s case at trial depended on the jury accepting the complainant as a credible witness. The applicant’s case at trial was that the sexual intercourse was consensual, and there was no choking involved.

The respondent’s case at trial

The complainant’s evidence

19. As the complainant’s evidence is so important to the issues in this appeal, it is now set out in some detail.

Evidence-in-chief

20. The complainant was 18 years old at the time of giving evidence. She gave evidence from a closed-circuit television room over two days in October 2020 with the support of her case worker and psychologist in the room with her. The complainant’s evidence included the following.

21. In late 2018, the complainant was 16 years old. The complainant had initially met her friend, MB, through a woman called Sharon. The complainant used to live with Sharon, and Sharon took the complainant to MB’s house which was where they were introduced. MB is younger than the complainant and in late 2018, MB was someone she would “hang around a fair bit”. In late 2018, the complainant was dating a woman, SM. At the time of the complainant giving evidence, they had recently broken up.

22. The complainant met Shamsul through MB. She said she thought he was older than her by “about 20-odd years” and that she “hardly [knew] him”. In around October 2018, the complainant met the applicant for the first time in a unit in Lakemba through MB and Shamsul. There were three other people present at the time in addition to MB and Shamsul. The complainant met the applicant for a second time on 8 December 2018 in Wiley Park, when she was “hanging out” with “him and other people” and drinking alcohol.

23. The complainant met the applicant for the third time on the day of the incident, that is, on 25 December 2018. The complainant was living with MB at that time.

24. Prior to meeting the applicant on 25 December 2018, the complainant started having “jelly shots” (a mixture of vodka and gelatine in a shot glass which is then cooled in the fridge) at around midday at the Campsie house. She had around three at that time. She was not intoxicated by the jelly shots but had a few cups of alcohol and got to a point where she felt “pretty drunk”.

25. At around 7:00pm, she overheard MB calling Shamsul on the phone and arranging for the complainant and MB to be picked up by Shamsul and the applicant. The applicant and Shamsul arrived in a car and parked down the road. When the complainant went out to the car with MB, she saw the applicant in the passenger’s seat and Shamsul in the driver’s seat. The four of them drove together to IGA to get vodka and Shamsul went into the shop to purchase it. The complainant said that Shamsul purchased the “red Smirnoff one”. It can be noted that neither the complainant nor MB were old enough to drive independently or to purchase alcohol themselves.

26. The applicant was wearing a white shirt with “some black design pattern on his shoulder” and dark tracksuit pants.

27. After the vodka purchase, the four of them travelled together to another person’s house to drop off a bottle of Jim Beam (a brand of bourbon whiskey). They were at the house for approximately two minutes before travelling to Wiley Park. At this point, the applicant was still in the passenger’s seat and Shamsul was driving.

28. The complainant was shown Exhibit A, which she agreed was a photograph with an X marking where the car was parked by Shamsul at Wiley Park.

29. After the car was parked, the four of them got out of the car and walked over into the park where they started to drink vodka. They would take a mouthful of vodka and then take a mouthful of coke afterwards. The complainant confirmed that there was no other alcohol at the park aside from the vodka, and that she “had quite a lot of vodka”. The others were “drinking, but they weren’t drinking at the same time. So, like, they’d drink but very, very slowly”. That included the applicant.

30. It is noted that after this portion of the evidence, there was a technical glitch during which an image of an unrelated person in custody was accidentally shown. When the complainant returned on screen, she told the trial judge that she was “feeling very depressed and very stressed out” and asked to be excused for the afternoon. The trial judge noted that the complainant was visibly upset and excused her for the afternoon.

31. The complainant’s evidence in chief continued the following morning.

Evidence in relation to the incident

32. An image of Wiley Park from Google maps with an “X” marked on an area of grass was tendered at trial and marked as Exhibit B. The complainant said it depicted roughly where she was sitting with the group when they were drinking vodka.

33. The following questions and answers were then given:

“Q. After you’d been sitting in that area, did you end up walking towards and into the bush a little way?

A. Yeah.

Q. How did that come about? Why did you go into the bush?

A. I don't know. I wasn’t in a straight state of mind and I thought I was just going for a walk.

HER HONOUR

Q. [The complainant], sorry to interrupt here but it’s very hard for us to hear you at the moment and I think partly because you just don’t have your chin up and looking to the camera. If you could just perhaps repeat your answer a bit louder for us.

A. (No verbal reply)

Q. I’ll ask Mr Crown to ask you that question again.

A. (No verbal reply)

CROWN PROSECUTOR

Q. What led to you walking into the bush there? Just tell us how that came to happen.

A. I don’t know.

Q. When you went in towards the bush did anybody go with you?

A. Yes.

Q. Who went with you?

A. [The applicant].

Q. Was anything said by either you, or [the applicant], or both of you before you went into the bush?

A. No.

Q. When you went towards the bush did you see where [MB] and Shamsul were?

A. No.

Q. Was anything said just before you’d gone to the bush by Shamsul about [MB]?

A. No.”

34. Leave was then granted to the respondent pursuant to s 38 of the Evidence Act 1995 (NSW) and the complainant was shown the statement she made to police on 27 December 2018. The complainant agreed that in that statement she said, “while we were all sitting together, Shamsul said he had to speak to [MB] by herself. [The applicant] then said he had to speak to me also by myself”. The complainant agreed that in her statement she said “[the applicant] and I walked around 5 metres away and sat closer to the tree line”. The complainant agreed that what she stated in her police statement was what happened.

35. The complainant continued in examination-in-chief as follows:

“Q. […] So after [the applicant] said that he wanted to talk to you by yourself, after that time you went towards the bushes with [the applicant]. Is that right?

A. Yeah. Yes.

Q. At that time, what were you thinking about what might happen or why you were going there?

A. I thought that it was just going to be a normal conversation.

Q. Did you go into the bush, or was it just near the bush, or where was it that you ended up with [the applicant]?

A. Was in the bush.”

36. Another Google map image with a marking “X” (Exhibit C) was shown to the complainant. The complainant confirmed that she put the marking “X” on the image when she made her police statement. She later confirmed that the marking “X” depicted the location where the incident occurred.

37. The complainant was asked to explain what happened when she and the applicant went towards the bush area. She said:

“I was rolling a smoke and he had got closer to me and just got closer, and then he choked me, pinned me to the ground and raped me and I tried to scream for help but I couldn’t breathe. I felt like I was going to black out. This fucking sucks.”

38. The complainant said she was standing on “leaves and bush” when the incident started. Before the applicant choked her, “he threatened to go after my family if I had said anything.” When he started to choke her, he used one hand but she could not remember which one. She said, “I can’t remember […] I don’t want to remember.”

39. She came to be on the ground “instantly” after he first started to choke her. When she went to the ground, “his hand was on my neck and he was holding my arms and..(not transcribable)..both of his legs.” The complainant continued: “he had my neck with his hands, right? And then he put his knees on my fuckin’ arms”. The complainant said the applicant’s grip was “really, really firm and tight” when he had his hands on her neck.

40. The complainant agreed that her earlier evidence about trying to scream was at this point when she was on the ground. The complainant confirmed that she tried to scream but was unable to get the scream out.

41. The complainant said that she had a black pair of Tommy Hilfiger tracksuit pants on at the time, and that she thought she was wearing a blue jumper.

42. The complainant was referred to her earlier evidence that the applicant raped her and was asked to explain what happened. The complainant said, “As he was choking me he had his knee on one of my arms and used the other to pull my pants down and as I was about to blank out he let go and then he raped me.” The complainant was asked if she said anything or made any sounds during that time to which she said, “No. I was not able to make any sounds.” When the complainant was asked if the applicant said anything to her during that time, she said that the applicant was telling her not to tell anyone or he would go after her family and kill her.

43. The complainant confirmed that what she meant by “rape” was that the applicant put his penis into her vagina. The complainant thought it lasted about 15 seconds and she did not know whether the applicant ejaculated. The complainant said that she did not know what brought an end to it but that the applicant just stopped.

44. After it stopped, the complainant got up and started to walk away back to where she was sitting before. She could not run because she was in pain. She felt pain around her neck and her “lower half”.

45. When the complainant was asked if she saw the applicant after she went back to where she was sitting before, she said “not for a few minutes or – hours later.” The complainant said she saw Shamsul and MB when she went back. The complainant said that Shamsul wanted her to go into the bush at the time and she refused to.

Complaint of rape to MB

46. The complainant was asked if she said anything to MB about what happened while they were still at the park. The complainant said that she did and that she told MB, “I was raped and I wanted to go home”. The complainant said that MB “got really angry”.

47. Shamsul then dropped her and MB off at the Campsie house. The applicant was in the car with them when they were being dropped off.

Complaint of rape to SM

48. As soon as she got out of the car, she “started crying in [sic] ran straight to the house.” Her girlfriend, SM, was at the house and “she’s the one who I ran crying to.” When asked what she said to SM when she saw her, the complainant said “I said that I was raped..(not transcribable)..”.

Report to police

49. The complainant spoke to a triple-0 police operator when she arrived back at the Campsie house. MB’s older sister, BB, told her that the police were at the house. Another older woman was also at the house.

50. The complainant went to St George Hospital afterwards and they “had a look” at her and spoke to her. She went a couple of times. On the first occasion, the complainant told them she did not want an internal examination at that stage.

51. When asked about the pain the complainant felt to her neck and her lower half, the complainant agreed that she later saw marks on her neck which were only there after the applicant “did this” to her.

49. The next day she went to her own place in Belfield and looked in the mirror and noticed that she had a cut on her bottom lip. When asked about when that happened, the complainant stated, “When he had raped me.” She said, “he leant in and bit my lip.” The complainant indicated that the location of the cut was on her bottom left lip.

50. The complainant was again shown Exhibit C and confirmed that the marking “X” on the photograph was where the applicant raped her.

51. Examination-in-chief then concluded as follows:

“Q. [The complainant], I am going to ask you a question now and I am not asking you about any other sexual activity, all right? But you’ve told us you’ve got a girlfriend [SM]. Yes?

A. Yep.

Q. Do you have any sexual attraction towards men?

A. No.

Q. Was that still the situation on this night when this happened to you?

A. Yes.”

Cross-examination of the complainant

At MB’s house and jelly shots

55. The complainant agreed that she attended MB’s house at about 12:30pm or 1:00pm on 25 December 2018, and that her partner SM was with her at the time. She agreed she had three or four jelly shots at that time.

56. The complainant agreed that she gave a police statement a few days after the incident. She was asked to read a portion of her statement and agreed that she had told police that she had the jelly shots at 5:00pm on that day. The complainant agreed that her evidence in court was different to her police statement.

57. The complainant was further cross-examined as follows:

“Q. Mr Crown also asked you yesterday, following up from that, how drunk you were, and your response was you were pretty drunk at that point in time?

A. I was pretty drunk.

[…]

Q. You were pretty drunk?

A. Yeah.

Q. Okay. Well if I take you to the same paragraph in your statement, you'd agree, wouldn't you, that you said, ‘These didn’t make me drunk’. Do you agree you said that in your statement?

A. Yeah.

Q. And you would agree, wouldn't you, that that is a different version to what you indicated yesterday in your evidence?

A. Yes.”

58. I note that this was an incorrect characterisation of the complainant’s evidence. As can be seen from the summary of her evidence-in-chief above, in fact the complainant had stated that the jelly shots had not made her drunk, but that the additional cups of alcohol had made her feel “pretty drunk”. Whilst no objection was taken at trial by the respondent to the misleading of the complainant, the jury later had access to an agreed transcript of the complainant’s evidence which was marked MFI 10.

59. It was then put to the complainant that she had had a disagreement with her girlfriend SM during the course of that afternoon. The complainant disagreed but agreed that she left with MB during the evening. It was put to the complainant that at no point in time did she ever inform her then girlfriend SM that she was leaving. The complainant replied that SM knew when the complainant was leaving, which was around 7:00pm. The complainant said that to her knowledge, SM was aware of who the complainant was meeting up with after leaving the Campsie house.

Meeting the applicant and Shamsul

60. The complainant agreed that she got into the car freely with the applicant and Shamsul and left the Campsie house. The complainant was “pretty sure” they went to the bottle shop and stayed in the vehicle with the applicant. There was no conversation with the applicant at that time. Shamsul then returned to the car and there was no conversation from that point between her and the applicant until they reached the park.

61. The complainant agreed that they went to another person’s house to drop off the bottle before they went to the park. She could not remember whether or not it was still light when they arrived at the park. She said there were no other people present in the park when they arrived.

62. The complainant agreed that the four of them left the car and made their way to an area in the park, described by the complainant as “that hill there” on Exhibit C. She had had no conversation with the applicant up until the point when they arrived at the park.

63. The complainant had been speaking to MB up until that point but she could not remember if she had spoken to Shamsul up until that point.

64. The four of them were together in the park for 20, 30 minutes, and during that time she did not see anyone else in the park. The complainant did not agree that that particular area of the park was covered with lighting.

65. The complainant agreed they were passing around a bottle of vodka and were effectively taking turns, “one for one, with the other three people in [the] party”. That continued until the bottle had about “a quarter left of vodka.”

66. The complainant was asked “And would you agree that at that particular time you weren’t drunk?” to which she replied, “I was drunk.”

The complainant’s complaint to the triple-0 operator about going into the bush

67. The complainant was asked if she remembered having a conversation with the triple-0 police operator, to which she said yes. It was then put to the complainant that during that telephone call, she said “He then – then he took us. Like we were all talking and then he said he needed to tell me something important.” The complainant said that she could not remember. The complainant agreed that the reference to “he needed to tell me something important” was at a time prior to her going to the bush.

68. It was put to the complainant that her evidence in examination-in-chief was inconsistent with what she had reported to police during the triple-0 call. The complainant was asked if she agreed that her earlier evidence was that there was nothing said before she went into the bush. The complainant said she could not remember.

69. The complainant was then referred to her triple-0 call in which she stated: “So then we walked like two metres away from everyone. We walked right into the bush, but it was right there in front of everyone.” The complainant disagreed with the suggestion that she said that during the telephone call.

70. The complainant agreed that what she meant was that she and the applicant walked two metres away from MB and Shamsul.

71. It was put to the complainant that her words of “it was right there in front of everyone” was a reference to being in front of MB and Shamsul. The complainant disagreed and said, “They weren’t anywhere near us in the bush otherwise wouldn’t you think they would have heard me screaming.” The complainant was further taken to what she had said to the triple-0 operator, to which she said she could not remember. The cross-examination continued as follows:

“ANDERSON

Q. You then say, ‘He like sat in front of me and I sat right there talking to him and I’m not even that drunk. I’m telling you I’m not even that drunk and we were having a normal conversation and then he choked me and he pinned me to the floor and I tried to scream out my friend. Then he covered my mouth and then he just. I can’t even talk anymore.’ Now, do you agree you said that during the telephone conversation‑‑

A. I can’t remember.

Do you concede, Mr Crown?

CROWN PROSECUTOR: Yes. Well, it will be played, in any event.

ANDERSON: Yes.

Q. When you say you’re having a normal conversation, that’s a reference to having a normal conversation with [the applicant], is it not?

A. I don’t know.

Q. You then make reference to, ‘He like sat in front of me and I sat right there talking to him.’ You would agree this is before you say [the applicant] grabbed you around the neck? Would you agree with that?

A. No.

Q. You were asked a question yesterday by Mr Crown as to whether or not you were standing at the time you were grabbed around the neck. Do you remember that?

A. Yeah.

Q. Your response was you were standing at that particular time. You agree with that?

A. Yes.

Q. So when you say, ‘He sat there in front of me and I sat right there talking to him’, would you agree that’s different to what your evidence was yesterday?

A. No. How do you expect me to roll a cigarette standing? I would obviously have to sit down to roll a fucking cigarette. It’s simple logic. Fucking hell, bro.

Q. So on this version that’s recorded in a telephone call, would you agree that you’re saying that in fact Mr Hossain grabbed you while you were sitting on the ground?

A. I don’t know, I haven’t heard the video - the phone call, have I? It’s been two freaking years and you expect me to have, you know..(not transcribable)..like, memory? Fuck, bro..(not transcribable)..I’m traumatising fucking memory, what the fuck do you expect me to..(not transcribable)..”

Complaint to police at the Campsie house

72. The complainant was asked if she recalled police attending the Campsie house later that evening. The complainant said that she did not remember. She was advised that she spoke with a police officer, SC Foggorty, who was wearing a body worn camera at the Campsie house, and it was put to her that she said to SC Foggorty, “We’re at the park, and we’re sitting in a circle just talking, and they approached us, and they acted like they knew who everyone was.” The complainant was then asked if that was a reference to the applicant and Shamsul to which the complainant said that she did not remember.

73. It was then put to her that she was referring to the applicant when she said to police, “I already knew who he was, and we were already friends.” The complainant disagreed. The complainant further disagreed that she was referring to the applicant when she said to police, “But I thought we were just friends, because we had just met, and we were just friends, and then he said he wanted to tell me something, and I was like, everyone was just talking, like blah blah blah blah.”

74. The complainant was asked about what she had told police and the cross-examination continued as follows:

“Q. When you say, ‘We weren’t even that far from them’, would you agree that’s a reference to the distance you were from [MB] and Shamsul?

A. I don’t know.

Q. You then say, ‘We walked into the bush, but the bush was right there.’ Would you agree that it is no more that 2 to 3 metres away from where [MB] and Shamsul were at that particular time?

A. I do not believe that it was within 2 and 3 fucking metres within that - because it’s simple logic, they would have heard me screaming.

Q. You then say, ‘And everyone was right there, like right there. Then we went just 1 metre to the bush.’ Would you agree, at that particular point in time, [MB] and Shamsul are no more than 5 metres away from you?

A. I don’t know. Don’t want to fucking think about it.

Q. You then said, further on in the conversation, ‘and I just started screaming, and he just started choking me constantly, and pinned me to the ground to the point that she couldn’t even hear me. I started screaming so loud to the point that I have lost my voice. Now I can’t even talk properly.’ Do you agree you said that?

A. Yes..(not transcribable)..it’s so hard. I don’t care why I have to freaking try to remember everything on that hurt when I’ve tried to forget everything. Bro, this is gonna probably..(not transcribable)..me to end up mentally unstable because of this shit..(not transcribable)..”

75. The complainant was again referred to her conversation with SC Foggorty, in which she stated, “And I wasn’t just screaming, and screaming, and screaming out for help and no one could hear me.” It was then put to her that at that particular time, she was screaming as loud as she possibly could. The complainant disagreed. The complainant agreed that she was “obviously” concerned for her welfare at that particular time.

76. In the course of answering, the complainant stated:

“How do you expect me to remember what I said to a police officer two years ago? How do you expect me to remember what I said to a police officer two years ago when I didn’t even get a chance to see this video or hear what this officer has said? Yet you..(not transcribable)..have the video and document on it when I have no clue. How do you expect me to remember a conversation I’ve had with a police officer two years ago while being highly intoxicated? Can you answer that?”

77. The complainant was further referred to her complaint to SC Foggorty that she said, “Like, he choked me when I started to scream. When I saw what was going on, I started to scream out and he choked me.” The complainant was asked if she started to scream before the applicant choked her. The complainant disagreed, stating:

“..(not transcribable)..fucking stand this, this cunt. No. Because if I had screamed before he choked me, wouldn’t it be pretty obvious that they would have heard me? Fuck sakes. How stupid is this cunt?”

78. It was then put to the complainant that she went on to say, “Like, he threw his hand at my throat and pinned me to the ground and started choking me so I couldn’t scream” to which the complainant said that she could not remember “because [she hasn’t] seen the video”. It was further put to the complainant that she went on to say, “And then he quickly let go and threw him off me and I got up and ran out of the bushes.” The complainant said she did not remember because she had not seen the video. She said she did not have a recollection of that occurring.

St George Hospital

79. The complainant agreed that she was taken to St George Hospital later that evening (in fact, early in the morning of 26 December 2018). The complainant agreed that she was assessed by a number of nurses at the hospital. She did not remember if she informed the nurses on that particular night that she had consumed three standard drinks. The complainant disagreed that she informed the nurses that she had smoked marijuana that day. She was then asked if she had in fact smoked marijuana that day and she answered that she did not remember as it was two years ago.

80. The complainant did not remember if she had informed hospital staff at some point during her attendance that she was punched in the abdomen that night. She further did not remember if the nursing staff looked at her neck. The complainant disagreed with the proposition that she did not have any neck pain when she was assessed that night.

81. The complainant agreed that she then left St George Hospital the following morning and returned on 27 December 2018. It was suggested to the complainant that she told a nurse during her consultation on 27 December that, “he grabbed my right shoulder with his hand and he pulled my pants down”. The complainant disagreed. She also did not agree that in her evidence the previous day there was no reference to the complainant touching her right shoulder. The cross-examination continued:

“Q. So you don’t agree with me?

A. No, cause how the fuck - why would I want to remember every detail and say every fucking detail when I’m trying to forget it? You don’t know the trouble I’ve been through to try and forget that night. So why would I want to mention every detail that’s going to traumatise me throughout the rest of my fucking day? Huh? Fucking..(not transcribable)..

Q. And would you agree that you had told the nurse that, ‘He tried to kiss me but I wouldn’t let him’?

A. I don’t fucking remember.”

82. It was clarified that she did not remember speaking to the nurse.

Police statement

83. The complainant agreed that she provided a statement dated 30 December 2018. The complainant confirmed that she made sure that her statement was true and correct at the time. The complainant disagreed that she put all the information concerning the incident in that statement.

84. The complainant was shown her police statement and was referred to paragraph 39 which read, “I screamed out and I was yelling [MB’s] name, but then he grabbed me again by the throat with his hand and pushed me to the ground.” It was then suggested to the complainant that she was referring to the applicant grabbing her a second time to which the complainant agreed. The complainant agreed that the statement then went on to say, “Both his hands were around my whole neck squeezing so tight I couldn’t even scream anymore.”

85. The complainant was referred to her police statement where she stated what was alleged to have been said by the applicant, “If you tell anyone I’m going to kill you. I’ll go after you [sic] family if you tell anyone”. The complainant was asked if her version is that the applicant had said those things before he started to choke her. The complainant disagreed and said that the applicant said it after he choked her. The complainant disagreed with the proposition that the applicant had never said that to her in the following terms:

“Q. Would you agree with me that he never said that?

A. No. What the fuck stupid question is that? Have you read the fucking statement?”

86. The complainant was asked by the trial judge to calm down to allow the defence counsel to continue his questioning. The complainant agreed, and then was asked to read a particular paragraph of her statement. This was followed by the following cross-examination:

“Q. Do you agree you say, ‘I tried to sit up which caused him to pull his penis out of my vagina and I wriggled myself out of his hold and ran away’? You agree you said that?

A. Yeah.

Q. You then said, ‘I started to run. I pulled my pants up and I was running towards where [MB] and Shamsul were sitting when we left them.’ You agree you said that?

A. Well, that’s what it says in the statement that I wrote.

Q. You’d agree that is a location of no more than five metres away from where you were?

A. How the fuck am I supposed to remember how far I ran? Why would I want to remember how far I ran? Why the fuck would I want to remember in the first place? This isn’t fucking fair. This should have been over two years ago - two fucking years ago. I shouldn’t have to be relieving [sic] my past. I shouldn’t even have to be thinking about it, my past. I’ve tried so hard to forget it.

HER HONOUR: Ms [Complainant], I’m sorry to have to speak to you during this because I can see you’re very upset and I understand that and it is a process though - all right. Ms [Complainant], I’m going to give you a break because we need you to be able to be calm just to listen to the questions and answer them. So I’m just going to give you a break just for a short time so just for a couple of minutes all right? So I’m just going to close the connection now.”

87. The questioning resumed after a break. The complainant disagreed with the suggestion that at the time of the incident, it was very quiet in the park. The complainant was referred to her police statement and was asked if she agreed it stated, “But I could hear him because it was so quiet at the park with no one else around”. The complainant said, “There were cars driving on the highway.”

88. The complainant disagreed that she was conversing with MB, the applicant and Shamsul before she went into the bush. The complainant disagreed that she engaged in a conversation in a friendly manner with the applicant. The complainant said that she did not talk to strangers. It was then put to the complainant that during that period of time, the complainant and the applicant became physically closer to each other. The complainant disagreed.

89. Through the above portion of questions and answers, the complainant continued to use robust language, including stating, “That’s a fucking stupid question.”

90. It was put to the complainant that at some point in time, the complainant kissed the applicant on the cheek to which she disagreed in the following terms, “No. Why the fuck would I do that, you – you’re a fucking liar.” It was further put to the complainant that whilst she was still sitting with MB and Shamsul, she placed her hand on the applicant to which the complainant disagreed and said “I did not go anywhere near him. Or fucking touch him”.

Propositions

91. The complainant disagreed in vigorous and forceful terms to the following propositions:

1. She put her hand on the applicant’s leg while they were sitting;

2. She stood up first;

3. She put her hand out towards the applicant;

1. She invited the applicant to stand up with her;

2. She invited the applicant into the bush;

3. She entered the bush first and the applicant followed after her;

4. She and the applicant kissed when they got into the bush;

5. She engaged in a friendly conversation whilst she was in the bush;

6. During the time she was in the bush with the applicant, MB and Shamsul were within five metres of distance;

7. She decided to remove her pants at some point and lay on the ground;

8. The applicant took his pants off after she laid on the ground;

9. She was a willing participant up until that period of time in the bush; and

10. She grabbed the applicant’s penis when he was hovering over her on the ground and she inserted his penis inside her vagina.

92. The complainant disagreed with further propositions put to her:

1. She was a willing participant in having sexual intercourse with the applicant;

2. The sexual intercourse continued for 30 seconds, and the applicant removed his penis from her and ejaculated on the floor;

3. She stood up and pulled her pants back up;

4. She engaged in conversation with the applicant in a friendly manner;

5. She walked with the applicant out of the bush and towards MB and Shamsul;

6. She sat on the floor next to the applicant;

7. She continued to engage with friendly conversation with the applicant;

8. She did not at any point attempt to flee the park;

9. She elected to hop back into the car with the applicant, Shamsul and MB of her own her free will; and

10. No one forced her into the car.

93. The complainant was referred to her evidence during examination-in-chief. It was put to her that her statement which read, “As he was choking me, he had his knee on one of my arms and used the other to pull my pants down, and as I was about to blank [sic] out he let go, and then he raped me” was incorrect. The complainant disagreed. In the course of her responses, she also said:

“Why would I give him permission. […] I was fucking 16 and that dog is somewhere in his fucking forties or some shit. Why the fuck? Why the fuck? This is fucking stupid.”

94. The complainant was then taken to an earlier part of her evidence when she said that the marks on her neck occurred after the applicant choked her. It was put to her that her evidence was incorrect, to which the complainant disagreed.

95. The complainant was referred to her earlier evidence about not having sexual attraction towards men. The cross-examination as to this issue went as follows:

“Q. You were then asked, this is page 50, line 10, ‘Do you have any sexual attraction towards men?’, and you answered, ‘No.’ Ms [Complainant], you would agree that's simply incorrect?

A. You're a fucking hypocrite, I'm a lesbian and why would I lie about my sexuality? I don't like men. I don't like men.”

96. It was put to the complainant that the applicant did not rape or choke her on 25 December 2018. The complainant disagreed with both propositions.

Re-examination

97. It was clarified in re-examination that no one had physically forced the complainant into the car after the incident.

Evidence of MB

98. MB was 17 years old at the time of giving evidence and 15 at the time of the incident. She gave evidence via Audio Visual Link with the support of an officer from the Witness Assistance Service.

99. MB was a friend of the complainant, whom she had known since year 9 (MB was going into year 12 at the time of giving evidence). She had known Shamsul since she was 13 years old and Shamsul was a person she had come to hang out with and sometimes drink alcohol with. She met the applicant through Shamsul and she had met the applicant (and some others) once or twice before the incident on 25 December 2018.

The events of 25 December 2018

100. In the middle of the afternoon of 25 December 2018, the complainant and her partner, SM, arrived at the Campsie house to celebrate Christmas. There was alcohol in the form of jelly shots and vodka in the house and she had 10 shots while the complainant had around three. There was approximately a quarter of a bottle of vodka that went into making the jelly for the shots.

101. MB started drinking alcohol from approximately 11:30am until 4:00pm or 5:00pm that day. In that time, MB had 10 jelly shots, three drinks of vodka mixed with creaming soda and three shots out of the bucket shot (which was comprised of a mixture of different liquors). It was not the first time she had consumed alcohol and the effect of the alcohol on her was “not that much” and she was “just a little bit tipsy”.

102. In the evening of 25 December 2018, she telephoned Shamsul as the complainant and SM were having a little disagreement because there was no more alcohol in the Campsie house and the complainant “just wanted to get out”. The complainant told her she wanted to “have a break from [SM] and to drink a little bit more”. MB could not recall what she told Shamsul when she called him but agreed that there was an arrangement for him to come and collect her.

103. MB and the complainant were collected by Shamsul at around 8:00pm from the intersection of Campsie Street. MB saw Shamsul in the driver’s seat and the applicant in the front passenger seat. They drove to the IGA at Enfield and Shamsul bought a 700ml bottle of Smirnoff vodka, 700ml bottle of Jim Beam and some Coca-Cola. They all remained in the car while Shamsul made the purchases. One of the bottles was for her friend [SR] and they dropped off the bottle to her.

104. They arrived at Wiley Park at around 9:00pm and Shamsul parked the car right near the park. The lighting in the park was described by MB as follows:

“A. […] there was just a little bit of sunlight and then just a tiny bit so the sky was like probably like a dark - like a - like a - like a - yeah, just like the sun was just about to like leave the sky, so it’s about to be black, but there was hole - there was like the lights from the park.

Q. Lights from the park?

A. Yeah, like the whole lights.

Q. So, was the - when you say the whole lights, like are you talking like stadium lights, bright lights or not?

A. No, just like street lights, not too bright.”

105. The four of them went into the park and first sat under a tree next to a stream that flowed into a pond down the end. Everyone started drinking the Smirnoff vodka bottle there. MB was unsure of how long they stayed at this location. At some point Shamsul suggested that they move because there were families coming around at the park. They all then moved “up the top” towards a theatre that was in the middle of the park. By the time they moved, there was approximately a quarter of the Smirnoff bottle left and they continued to drink the bottle at the new location.

106. Approximately 15 to 20 minutes after they sat down near the theatre, she became separated from the complainant. MB gave the following account of how they came to be separated:

“A. […] We were all..(not transcribable)..drinking and talking. And then they’ve - Shamsul and [the applicant] - had started to speak in their language. And then - but I don’t know what the language is. But - and then one of them said, ‘Do you wanna go over there? Do you want them to go over there and we stay here?’ Shamsul said that. And then I said, ‘No, why would they need to? There’s no need for you to go over there. We can all stay here.”

107. MB was asked who said those things and to whom it was directed towards. MB said she was not sure who said it, but it was either Shamsul or the applicant who suggested they separate. MB said she replied, “There’s no need. There’s no – there’s no reason for us to be separated; we can all stay together.” MB could not recall any conversation between the applicant and the complainant.

108. The applicant and Shamsul asked a second time before the applicant stood up and put his hand out towards the complainant. The applicant then moved towards a bush next to a light pole that was approximately 10 or 15 metres away. The complainant then followed the applicant. MB could not recall if there was anything said before the complainant followed the applicant.

109. The complainant did not seem intoxicated when she followed the applicant. MB said that she was not really affected by alcohol at this stage and that she was “not even tipsy” at this point.

110. When the applicant and complainant moved towards the bush, she and Shamsul remained where they were. Shamsul was sitting in front of her at this time and there was music being played on maximum volume from his phone but it was not that loud. It was dark besides the light poles and she did not see anybody else at the park. She could not hear any other background noise (including any noise from the road) aside from the music on the phone.

111. MB next saw the complainant approximately 10 or 15 minutes later when they came out of the bush area. MB initially gave evidence that the applicant came out from the bush before the complainant. However, she was then taken to her police statement, dated 30 December 2018, where it was stated, “It seemed like about five to 10 minutes later when I saw [the complainant] walk out of the bushes, [the applicant] was right behind her”. MB said, “Yes, I [didn’t] remember that” and accepted that her police statement was correct.

112. MB was unable to recall how the applicant and complainant were moving when she first saw them. They first stopped at the light pole which was approximately 10 metres away from where MB was, and she continued to watch the complainant and the applicant but did not remember anything other than them stopping next to the light pole.

113. When the complainant and applicant came back from the light pole, MB signalled to the complainant to come and speak to her. MB said that she asked the complainant “What happened”. The complainant said, “He just raped me.” MB said “Are you serious? Are you sure?” to which the complainant replied “Yes.” MB said that she was really angry and said to the complainant words to the effect of “I’m going to kick him in the head”. MB believed the complainant replied “No, no, don’t do that.” MB said that she asked “Why”, to which the complainant replied, “he threatened me.” MB said the complainant told her that the applicant was going to tell her family about something and that it was “probably still scary for her.”

114. While this conversation occurred, the applicant was at the spot at which he was originally sitting with Shamsul. MB and the complainant left the two men “to go to pee somewhere” before returning to where the applicant and Shamsul were sitting. Both the applicant and Shamsul then said, “What happen?”. MB and the complainant replied with words to the effect of, “Nothing. We just want to go home.” The complainant was trying to make an excuse for her and MB to leave by saying that she (the complainant) needed to get her phone to call her dad. At around this time MB and the complainant were whispering to each other about going home and getting Shamsul and the applicant to take them back home. At some stage Shamsul suggested going to pick up SM and going to the beach. MB said that she agreed but that it was to make Shamsul and the applicant take her and the complainant back home. MB said that they all then got back into Shamsul’s car and went back to the Campsie house.

115. After they arrived back at the Campsie house, MB and the complainant got out of the car and either Shamsul or the applicant said, “Make sure [SM] comes to the car.” MB and the complainant then headed back to the Campsie house and the complainant was moving quickly, almost jogging, back to the house.

116. The complainant called out “baby” to SM and SM started to go towards the complainant. The complainant and SM then hugged and kissed before the complainant ran inside the home. MB then followed the complainant inside. The complainant went outside to the backyard area. The complainant was crying, really hysterical and upset. SM was not with her at that stage. MB then went out to the front with SM. BB (MB’s older sister) followed them. The three of them approached Shamsul and the applicant who were still in the car. MB told the applicant to “get out of the car.” SM also asked the applicant and Shamsul “something” but MB could not recall what was said. BB also told them to go away. The applicant and Shamsul then drove off quite fast.

117. When MB came back in and went to see the complainant, the complainant said that she felt really dirty. MB’s mother’s friend [LP] was at the house. LP said, “I can’t handle this, I’m calling the police”. The police arrived a little later.

118. In cross-examination, MB agreed she had 10 jelly shots in the morning, about three drinks of vodka and creaming soda, and three shots from a bucket shot. She also shared a bottle of vodka with the complainant, the applicant and Shamsul at the park. MB disagreed that she was affected by alcohol at the park.

119. MB agreed that she gave a statement to the police dated 30 December 2018, and that she had been able to read it in the past couple of days. She disagreed that she had read it on multiple occasions.

120. MB was then referred to the conversation she had with the complainant after the complainant came out of the bush. She disagreed that she had read that conversation on a number of occasions over the previous couple of days. She also disagreed with the proposition that the conversation never took place. MB said that it was a very intense conversation. She disagreed that she had memorised the conversation by reviewing her statement over the previous couple of days.

Evidence of Patsy Jiang

121. Ms Jiang was a sexual assault nurse examiner who was working at St George Hospital in 2018.

122. Ms Jiang was taken to the statement she had prepared earlier and confirmed that she saw the complainant at St George Public Hospital at 7:40pm on 27 December 2018. Ms Jiang confirmed that she noted the following:

1. A history was taken from the complainant. Notes of that history were made by Ms Jiang as the complainant was recounting it.

2. The following note was recorded in Ms Jiang’s statement, which was made with reference to her notes of the conversation she had with the complainant:

“[The complainant] told me that around 2230 hours on 25 December 2018, [the applicant] took her to the bush to tell her something. Suddenly, he put her on the ground, and he was choking her with both hands on her neck. She stated that, ‘I felt like blacking out.’ I asked her whether she blacked out. She replied, ‘I was nearly blacked out.’ [The complainant] told me, ‘He grabbed my right shoulder with his hand and he pulled my pants down.’ She stated that, ‘He put his penis in my vagina after he pulled down his pants.’ She stated, ‘He tried to kiss me but I wouldn’t let him. He bit my lower lip.’ I asked her what happened after that. She said, ‘After he had sex, I ran away and went to my friend.”

3. The complainant told her that no condom was used, and that the applicant ejaculated inside her.

4. The complainant was menstruating at the time of the examination.

5. The complainant said that she had four jelly shots between 4:00pm and 5:00pm on 25 December 2018.

6. A physical examination was conducted on the complainant. During the physical examination, Ms Jiang noticed that there was one area (roughly the size of a 10-cent coin) of red dots on the left side of the front of the complainant’s neck and midway between the lower jaw and base of the neck known as petechiae. Petechiae are a small collection of very pinpoint bruises on the skin caused by broken blood vessels under pressure, and it is possible they can come about by the application of force to that area. Ms Jiang also noticed two parallel abrasions, both less than 1 centimetre in size, on the right side of her neck.

7. A genital examination was conducted on the complainant, both externally and internally. During the examination, Ms Jiang noticed that the complainant had a laceration of the hymen approximately 4 millimetres in length at the “4 o’clock” position. A speculum was then used for the international examination, however, Ms Jiang said it was difficult to assess vaginal injury as the complainant was menstruating.

8. There was no record of any injury to the complainant’s lip.

123. Ms Jiang said that on the medical examination alone, she was unable to “prove or disprove if a certain sexual act [had] occurred”.

124. There was a short cross-examination of Ms Jiang. She was asked if there was pressure placed on both sides of the neck, would she expect petechiae to evolve on both sides. Ms Jiang said it was possible, but that she could not comment as she was not a pathologist. Ms Jiang also agreed that it was possible that petechiae could arise by way of a “hickey”, that is, by sucking.

Evidence of BB

125. BB is the sister of MB. She knew the complainant as one of MB’s friends. At the time of the incident, she lived at the Campsie house with her mother, her sister MB, her two brothers, and MB’s daughter.

126. BB gave evidence that on 25 December 2018, the complainant and SM came over to the Campsie house and engaged in festivities including playing music and singing. People were drinking alcohol “during the day, during lunch and stuff, yeah.” BB could not say whether the complainant or MB were drinking.

127. BB gave evidence that one of her mother’s friends, LP, also arrived at the Campsie house. BB gave evidence that at some stage in the early evening, MB and the complainant left the house and SM stayed. She did not know they were going to leave and nothing was said.

128. Just before midnight, BB was in her bedroom, a renovated garage, and she heard a female who got her attention in the backyard. She went outside to see what the noise was and saw the complainant, SM and MB. The complainant was crying and she was “really upset, she was distraught. […] She couldn’t really speak, she just kept – just crying, like a lot – just cries weren’t coming up and stuff.” BB could not remember if the complainant spoke at this stage.

129. BB noticed SM and MB running through the house and heading outside. BB followed them. When asked what made her follow them, BB said the complainant stated, “Those guys are down the street.” BB said her street is a cul-de-sac and she, MB and SM went down to the corner of the shared zone of the street and saw a red sedan parked on the road.

130. BB saw MB and SM speaking with people in the car: “They were just all yelling at each other, yelling.” BB said she thought it was the two men in the car who were yelling, but when asked if she saw how the two men reacted when MB and SM were yelling, she said “They sort of – I think they kept more of a straight face, but I think they [were] more shocked to see me come over.” She told the men that she had their number plates and that she was going to call the police. She told them to leave. BB said, “They sat in the car for like couple – like one minute – one minute of me trying to pull the girls away from the car and then they left.” BB stated the girls were “really upset.”

131. BB then took MB and SM back inside because she did not want the neighbours to come out. When they returned, she said the complainant was still on the ground in the backyard. The complainant then “sort of ran” away from them and ran inside the house. They followed her. The complainant said that she “felt really dirty”. BB said that she couldn’t really understand the complainant because “like she had no voice”.

132. BB said the complainant said “they touched her” and that “He raped me.” BB gave evidence that the complainant kept saying she felt dirty and that she wanted to have a shower and wash her face. BB told the complainant not to shower in order to preserve evidence and that they would take the complainant to the hospital (BB had been a nurse for two years). When asked if the complainant ended up having a shower at that time, BB said that she didn’t think so and that she gave the complainant a cloth to wipe her face but that the complainant “didn’t anyway” and dropped the cloth.

125. BB said that she ended up calling triple-0 and speaking to the police operators before putting the complainant on the call. The complainant then spoke to the triple-0 operator and police arrived “a little while later”.

126. The questioning of BB concluded with the following:

“Q. How did she present when she was - as far as her demeanour? You know what I mean by demeanour: her presentation.

A. Shaking. She was shaking. She was distraught, crying.

Q. This is when she was on the triple‑0 call?

A. When she was on the - like, I was trying to get her to state - like, say her name, spell her name. I couldn’t - I couldn’t remember how to spell her name. And I don’t know if she was trying to - if she said it clearly, or - can’t remember.”

135. BB was not cross-examined.

The Electronic Interview (ERISP)¹ of the applicant

136. The ERISP was tendered at trial and the transcript was provided as an aide-memoire to the jury. The ERISP was played to the jury on 22 and 23 October 2020. The interview had been conducted using an interpreter on 6 February 2019 and had commenced at 1:58pm.

137. The applicant said that he lived at his address with three others and that he had lived there for one year. The applicant told police that he had come to Australia in March 2013 and that he was born in Burma. He said he used to work as a cleaner at a bakery in Marrickville but that he had stopped working there in April or May of 2016.

138. The applicant said that he “never had any trouble with police” and when the sexual assault allegation was put to him, he said “I would like to say that, um, I did not force her or I did not do anything. We had [a] mutual agreement, then only we came to that point.”

139. The police asked the applicant when he last had sex, to which the applicant responded that it was at a party in Wiley Park with an Australian girl. The applicant said that he did not know the girl but that she was a “friendly person” and they had a mutual friend. The applicant identified the mutual friend as Shamsul. ^[1] The applicant said that he had not seen the girl since.

     1. ERISP stands for Electronically Recorded Interview of a Suspected Person

140. The applicant was then asked about what he did on 25 December 2018 to which he said, “we did party.” When asked to provide as much detail as possible, the applicant said “I met my friend, uh, there were two girls with him, and, uh, we went to party together. And that girl, that particular girl that we’ve spoken about, she liked me and then we had, uh, sexual intercourse.” The applicant said that afterwards, they “went to drop those girls” and “came back.”

141. When asked for further details about what he did on Christmas day, he said:

“On the Christmas Day, um, what happened was that I met with friends. We went to do the party and we went to the corner of the Wiley Park because, uh, we did not want other people to, uh, see us. And, uh, we were enjoying, we were having fun and, uh, the girl liked me and we had sexual intercourse. That’s all.”

142. The applicant confirmed that he could remember these details easily.

143. The applicant was then asked to describe the two girls at the party. He correctly nominated MB’s first name. He was unsure of the name of the other girl but nominated the correct initial of the complainant’s first name. When the applicant was asked to estimate their ages, he said he thought they were “probably 18 years old.” The applicant then correctly nominated the complainant’s entire first name and said that he thought she was “probably 16 or 17.”

144. The applicant was then asked where they went to “hang out”, to which the applicant said “OK, my friend brought, uh, beer from somewhere else because, uh, there was, uh, there was no alcohol … all of us, uh, four of us, together we went to buy beer […] because there was no alcohol available in Lakemba.” The applicant said that he did not know the place they went to purchase the alcohol but identified that they went to Wiley Park to drink. He described Wiley Park as a park within the suburb of Wiley Park and he said that at the corner of Wiley Park, there was a “sloping area” which was near “a few houses”. The applicant said it was a “nice place to hang out” and confirmed that they sat “up the top of an area where it slopes down”. When asked if he could recall the time at which they sat at the “sloping area”, the applicant said, “I can’t remember because I was intoxicated.”

145. The applicant told police that Shamsul picked him up in his red Toyota at around 5:00pm or 6:00pm, but that he could not remember if the girls were already in the car at that point. They went to buy alcohol and “After bringing the alcohol, we did not want anyone else to see us or spot us, uh, that’s when we went to Wiley Park, the corner of Wiley Park, and, uh, we drank there.” Shamsul was the person who went to buy the alcohol and the applicant waited in the car with the girls while that was happening.

146. The police asked the applicant if he knew the girls prior to this meeting, to which he said he knew MB prior to this meeting and had met the complainant “twice prior”. He had not known the complainant “for a long time, probably could be 2 months”. He said he had met them through their mutual friend, Shamsul. The applicant did not know how Shamsul knew MB and the complainant.

147. The applicant had previously seen MB and the complainant with Shamsul but could not remember exactly where he had seen them. He said, “Probably they could have come in my house, but I cannot remember exactly.”

148. There was one occasion before Christmas Day where they drank alcohol with the girls at his house. On that occasion “nothing happened” and prior to Christmas Day, nothing sexual had occurred between him and MB or between him and the complainant. When asked if there had ever been a kiss, the applicant said no.

149. The police then asked the applicant if he liked the complainant and he replied “Yes, we liked each other.” He was then asked if they had ever spoken about doing anything physical or sexual and the applicant said, “Uh, we did not talk about it. After she got drunk, she said that she needs me and, uh, she started kissing me.” It was then clarified that the question was about whether or not they had talked about liking each other prior to Christmas Day, and the applicant said, “she told me that she liked me, but I didn’t know whether she was intoxicated or not at that time, but yeah, she did surely tell me, told me that um, she liked me.” When asked where this occurred, the applicant said:

“They were partying, uh, [the complainant] and other, uh, [the complainant], one of [the complainant’s] girlfriend was partying, we were partying with, um, [Shamsul] at Wiley Park, and, uh, I, I wasn’t present there. Uh, later on, I arrived there and [Shamsul] told me that they drank too much, I needed to drop them. And [the complainant] started crying and saying that emotionally, that I did not want her, I want you, yeah.”

150. It was clarified again that the applicant was talking about a date prior to Christmas. He was then asked about the identity of the other girl he was referring to and he replied “I do not know that girl, but this, uh, [the complainant] told me that it’s her girlfriend. Maybe boyfriend or girlfriend, I don’t know.” When asked if he had met the other girl, the applicant said, “I just saw her, but man it was dark.” The applicant confirmed that the complainant and MB had told him that the complainant had another boyfriend or girlfriend. When the applicant was asked if he had ever expressed to the complainant that he liked her, he said “[the complainant] told me that she liked me, and in response I also told her that I do like you, so.” The applicant confirmed to police that this had occurred prior to Christmas and also at Wiley Park. The applicant said that “they got drunk and, uh, I went to help them, uh, so that they could drove them. I don’t know where they drank.” The following questions and answers were then recorded:

“Q184   OK. So is he saying that before Christmas Day he also saw the girls another time at Wiley Park? Wiley Park park?

A (int:)   Yes.

A (int:) Um, I do not remember the exact dates and exact times, sure, but, yeah, as the conversation goes along I start to remember what, what’s has happened.”

151. The applicant was then asked if he had the phone number for MB or the complainant, to which he said he did not. The applicant confirmed that he used Facebook but said that he did not “know much [about] how to start a conversation and chatting and stuff.” He had never spoken with either MB or the complainant on the telephone.

152. He could not recall the outfit he was wearing on Christmas Day.

153. The applicant was then asked again how he knew the complainant, to which he said he met her when they came with Shamsul to have a drink at “our house”. He confirmed that this was the first time he met them. The next time he met them was the time in Wiley Park prior to Christmas. He said, “they were, uh, extremely intoxicated, um, I went to Wiley Park to help them out, but I’ve seen that they were screaming and then laughing, uh, doing some crazy things as well.” He told Shamsul to drop him at his home and told him “I don’t care what you guys do.” On this occasion the complainant told him that she liked him and he said, “She even kissed me.” The following questions and answers were then recorded:

“Q230   OK. ‘Cause, so when she said she liked you, what do you think that meant?

A (int:)   Um, I do not have any particular thoughts but she said that I do have a girlfriend as well, but you are a man and I do like you, and that’s how it was.

Q231   OK. So you don’t know what she meant by, I like you.

A (int:)   No, I couldn’t really understand…

Q232   And then you said that she has kissed you. Was that before or after she said she liked you?

A (int:)   Uh, she, she told me before kissing.

Q233   OK. And where did she kiss you?

A (int:)   Uh, she che [sic], uh, she kissed me on the cheek.”

154. Nothing else happened between them in a sexual way. After the complainant told him she liked him and gave him a kiss on the cheek, he told her that she’s “a very nice girl” and went on to say “Um, I like you too, and they were ver, [sic] they were, uh, screaming and, uh, shouting as well, because they were intoxicated.” He told Shamsul to drop him home.

155. The applicant was then asked what language he used to talk to MB and the complainant and he said, “Just the general English language.” When asked if they could easily understand each other, the applicant said: “I do not really unders, [sic] we, we have some difficult time because I don’t really understand the English language, but somehow we managed to do it.” He said they didn’t “really have the deep conversation” and spoke about “just the general things” like “if you, we have drink”, “do you need more” and “asked her home address or name, anything.” The applicant confirmed that he could speak and understand some English. The applicant said that he did not know much about the complainant’s life and that he spoke to her “just a little bit.”

156. The applicant said that on Christmas Day, the complainant and MB were sitting in the back seat of the car and himself and Shamsul were in the front seats and that when they went to buy the alcohol, they “did not really have, like conversation.” When they went to drink at Wiley Park, “[the complainant] was sitting near with me and [MB] was sitting near [Shamsul], and, uh, we just talking general stuff.” When asked “What about?”, the applicant said “OK. Um, [the complainant] and I, um, did not really have con, [sic] uh, deep conversation, but, uh, once we started to drinking, uh, [Shamsul] told us that you guys kick back and, uh, we’re going to anoth, [sic] the other corner, and, uh, yeah, we just did. Uh, we just have a good time.”

157. They drank a bottle of vodka with soda but he could not remember if he was very drunk. He said that the complainant was not drunk, and then stated, “I don’t think [the complainant] and [MB] was more drunk than us, because they can drink more alcohol than us, because we don’t drink, usually. Um, probably, she was less drunk than me.” The applicant said that no drugs were consumed by himself or the complainant. The following questions and answers were then recorded:

“Q259   OK. What happened in the park between you and [the complainant]?

A (int:)   Just, just intercourse, sexual intercourse. Then we came home.

Q260   Sorry, just, what did he say? Just translate again.

A (int:)    Uh, we just did sex once, and then. Then we came and there was some, um. So after…

Q261   A lot to translate.

INTERPRETER

Yeah, it’s just one, a few sentence, uh, circular things, you know what I mean.

Q262   OK. Yep.

A (int:)   Um, so after we, we had sexual intercourse, uh, we came back to the place, the main point and then we had some alcohol left as well, so we drank that and, uh… and then, uh, since we were a bit drunk, um, I told [Shamsul] that we should drop them, and apparently they stayed in, um, Campsie. We came to Campsie when we came to their house. [The complainant’s] girlfriend and [MB’s] sister came down and, uh, started shouting at us, saying that how dare you to bring them there. And we did not really understand or really, not really, uh, hear them. Uh, we’ve dropped them and then we went home.”

158. The applicant was further questioned about how much he and the girls had drunk. He said that they “drank one bottle of vodka. Four person, one vodka.” He was unable to recall if they drank from a plastic glass or directly from the bottle. When asked if he knew how much of the bottle he drank, the applicant said, “probably less than one [quarter]”. The applicant estimated that the complainant drank “probably the same” as him but that MB had “drank a bit too much.”

159. The applicant was then asked where he and the complainant went after sexual intercourse, to which he said, “The place that I have described, um, the sloping area.” The applicant stated they were in the middle of the park and they “just went like 100 metres away”, to the left side of the park and “just near where the highway is”. The applicant said that the complainant told him, “let’s go and kick back” and that she held his hand and brought him to “that place”. The following questions and answers were then recorded:

“Q282   OK. And what’s happened when you got there?

A (int:)   She took off her pants and, uh, we had, uh, sexual intercourse.

Q283    OK. Did you talk at all?

A (int:)   OK. Um, yes we did, um, talk a bit, um, uh, she said that, uh, I like you. I said, uh, I like you too, and then she started kissing me too, on my lips and she bite me too.

Q284   Where did she bite you?

A (int:)   On lips.

Q285   On your lips?

A (int:)   Yeah.

Q286    OK. And did she, did you say anything else to each other? How did you come to have sex?

A (int:)   Yeah, that’s all, and we had sex and then we came back.

Q287   OK. Did you wear a condom?

A (int:)   No.”

160. The applicant was then asked if they spoke while having the sexual intercourse, to which he said “yes…we just told each other that we liked each other.” The police asked the applicant what he thought the complainant meant when she said she liked him, and the applicant replied, “I do not understand what she, she meant by that.” The applicant was then asked what he meant when he said he liked her, and he said:

“OK. So I’ve been living here for past 6 years, uh, and I’m living here single without my wife, and since she said that she liked me and, uh, I, I thought that I would have, uh, someone that I could share my feelings. Uh, you know, she’s a female and I’m a man. […] Probably I could have had companionship.”

161. The applicant then confirmed that he was 36 years old and that he estimated the complainant’s age to be around 16 or 17. The following questions and answers were then recorded:

“Q301   And you don’t have a problem with if you got into a relationship with her?

A (int:)   I do not, uh, I do not have any problem, but I don’t know whether she would have any problem.

Q302   You’re not sure if she would have a problem with it?

A (int:)   Yeah, uh … I, I’m not sure.

Q303   OK. Do you think [the complainant] wanted to have sexual intercourse with you?

A (int:)   I believe that she wanted to have sex with me.

Q304   OK. And can you just describe the position you were in when you had sexual intercourse?

[…]

A (int:)   She took off her pants and then she got, laid down.

Q306   And then, what did he do?

A (int:)   I was on top of her.”

162. The applicant was (again) asked to describe what had occurred between him and the complainant from start to finish. He gave the following response:

“So what happened was basically when we started drinking […] she started touching me and I also started touching her, and then the… got a high level and then what happened was that sh, [sic] we went to that particular place, like 100 metres away, and then, uh, she took off her pants and we had, uh, sexual intercourse. After that, we came, came back to the place that we were sitting.”

163. When asked where the complainant was touching him, the applicant said, “She was touching my thigh and my body, and, uh, also she started kissing me too”. When asked where he was touching the complainant, he gave the following response:

“So I also started, uh, once she started touching me, I also started touching her eyes, uh, I had … her neck and I also started touching her entire body as well, and I do not remember what happens then […] she touched my thighs and I also touched my, uh, her thighs, and then we started touching each other on hand and necks and, uh, we started kissing each other as well. Then [MB] told us that why are you doing this in front of us. Just go in, somewhere else.”

164. It was then clarified that the applicant was touching the complainant on the shoulder rather than the neck. The applicant confirmed that the complainant also held her hand on his shoulder and that he put his hand on her waist. The applicant was then asked what happened after they started touching each other, and he said:

“A (int:) So, uh, when we were drinking and then touching each other, after that, [Shamsul], told [MB] something which I did not really understand and I don’t remember exactly either, what’s he has told to [MB]. And, uh, [MB] and [Shamsul] told us that you guys go that side to kick back and then I will go, we’ll, we’ll stay here. And, uh, we, [the complainant] had hold my hand to bring me to that place. That’s all.

Q323   Mm-hmm. What happened then?

A (int:)   Then we had sexual intercourse.

Q324   How? What, what happened?

A (int:)   Then, when we went to, uh, when we reached at that place, um, she took off her pants and then she kissed me and I also kissed her and then she laid down, and we had sexual intercourse. After that, we came to the original place.”   

165. The applicant said that he left his t-shirt on but took off his pants.

166. When asked how he knew the complainant wanted to have sex with him, he said:

“I didn’t know exactly if she wanted to have sex with me or not, but what I wanted, uh, what happened was that when we were drinking, uh, at that particular place, they told us that you guys go that side to kick back and we’ll go the other side. And when we went to the other side, things happened.”

167. The police asked the applicant if the complainant agreed to have sex with him, and the applicant said “Yes, she agreed, that’s why only I had sex, otherwise I wouldn’t have sex with her.” The police then asked how he knew she agreed and he said, “So we never had any dispute or any argument, and we went there, we had fun and we came, once we came back we were, uh, acting normal.” The applicant said that he believed that she wanted to have sex with him by showing him “this much hands”. He said that he believed that if she did not want to have sex with him, she would not have grabbed his hand and brought him to “the other place.” The applicant was asked if he was “100 per cent sure” that the complainant wanted to have sex with him, to which he said that he was and that if she did not want to have sex with him, there would have been “some sort of dispute” or “some sort of disagreement” which they “did not have at all.” He continued as follows:

1. Whether she audibly screamed;

2. How the incident ended;

3. Whether she walked or ran after the incident; and

4. The distance they were from the others.

226. The jury was reminded that it was a matter for it to consider whether there was any difference between the accounts and the significance, if any, of any difference between the accounts.

227. The trial judge reminded the jury of the prosecutor’s submission that the way the complainant presented was compelling, and that she “gave the appearance of being traumatised by what had happened as she recounted what happened to her.” The members of the jury were invited to use their common sense as to what the complainant said had happened – that she was grabbed at night by the throat, at 16 years old, choked, held down and raped – and that accordingly it was hard to expect someone who had suffered a highly traumatising incident when asked about it on different occasions by different people, to give an identical description in relation to peripheral matters. The respondent submitted that the essential matters remained consistent.

228. The trial judge also reminded the jury that the applicant’s case was that in assessing the reliability of the complainant, the inconsistencies in the details of her evidence affected her credibility. It was the applicant’s case that she was not a credible or reliable witness. The trial judge also directed the jury in relation to the applicant’s good character and reminded the jury of the applicant’s account to the police.

229. The closing addresses of the respondent and the applicant were then summarised.

230. Shortly after the jury retired to deliberate, which was after 3:00pm on 27 October 2020, the jury asked for a transcript of the evidence of Ms Jiang, MB and the complainant. The following morning on 28 October 2020, a request was made for the transcript of BB. A request was also made for the trial judge to restate her directions in relation to elements 3 and 4 of count 3. The jury then retired again to consider its verdicts shortly after 1:00pm on 28 October 2020.

231. The jury returned with its verdicts at 12.55pm on 29 October 2020.

Grounds of Appeal

Ground 1: The verdict of guilty in relation to count 3 was unreasonable and cannot be supported having regard to the evidence, because on the whole of the evidence, it was not open to the jury to be satisfied beyond a reasonable doubt.

General principles

232. The principles have been conveniently (and recently) summarised in AS v R [2022] NSWCCA 291 (”AS”) at [100]-[108] by Adamson J:

“Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW):

‘The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …’

The relevant principles which govern how an unreasonable verdict ground should be addressed were summarised in Crickitt v R[2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ):

‘1)   This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.

2)   It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.

3)   If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.

4)   A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant’s guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.

5)   A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. 

…’

[Footnotes omitted.]

Thus, this Court must determine whether it was ‘open’ to the jury to find the applicant guilty or whether a jury ‘must have had a doubt’: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. In other words, this Court must determine whether it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

In Pell, the High Court said further, at [53]:

‘There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it.’

The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). This constitutional principle has certain consequences.

First, it will not generally be appropriate, where evidence has been pre-recorded or recorded, for the appellate court to review it to form its own view of the credibility of particular witnesses on the basis of their presentation, since this is the function of the tribunal of fact: Pell at [36]-[38].

Secondly, in an appeal such as the present one, the function of this Court must proceed on the assumption that the evidence of the complainants was accepted by the jury as credible and reliable: Pell at [39].

Thirdly, there are consequential constraints on the extent to which an appellate court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

‘… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.’

Further, in assessing evidence of particular witnesses, particularly complainants, for the purposes of determining an unreasonable verdict ground, the experience of courts can be taken into account. This experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClelland CJ at CL and Sully J agreeing):

‘Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.”

233. Adamson J continued at [112]:

“Further, while courts may have experience in particular areas (evidence of complainants in sexual assault trials or trials where a prosecution witness is criminally involved in the events the subject of the charge), this is not to say that judges have any particular wisdom above that of jurors in fact-finding (indeed, judges may not be as good at it and lack the collective wisdom that comes from the cumulative experience of twelve jurors). What to a judge may seem ‘implausible’, may be commonplace in the world but simply be outside the experience of that particular judge. It is important for an intermediate appellate court, when reviewing evidence following a conviction, not to discount it simply on the grounds of apparent implausibility, when a jury can be taken to have been satisfied that the evidence, whether plausible or not, was true and correct.”

234. I also refer to the following passage of Hamill J in AS at [147]:

“The presiding Judge has emphasised, quite correctly, the ‘constitutional’ role of the jury and the advantages it enjoys. That role, and those advantages were explained in M and, more recently, in Pell. These advantages include more than the jury’s opportunity to see and hear the witnesses give evidence:

‘The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

…

The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury.”

(Footnotes omitted.)

235. Hamill J further referred to the following at [152]-[153] of AS:

“In Pell, the Court emphasised at [39] that this assessment is made ‘upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable,’ but:

‘The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’

The High Court in proceeded on the assumption referred in the last paragraph but concluded that a majority of the Court of Appeal fell into error in finding that it was open to the jury to convict in spite of uncontested evidence that cast a doubt on the appellant’s opportunity to commit the offences, and the ‘compounding improbabilities’ of the offence being committed in the manner alleged by the (credible and reliable) complainant.”

236. Finally, it is important to bear in mind the observations of McHugh J in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 534:

“It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of a conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

Submissions

237. The gravamen of the applicant’s submissions to this Court in relation to Ground 1 reflected the case that was clearly put before the jury for its consideration, that is, that the inconsistencies in the account by the complainant were so grave and central that her account could not be believed beyond reasonable doubt. The respondent contended that the central allegation of sexual assault was consistent and powerful and was the subject of immediate complaint.

238. The applicant pointed to a number of discrepancies in the complainant’s evidence which I will briefly canvass in turn.

How the complainant came to be in the bushes with the applicant:

239. The applicant submitted that the evidence of MB and the applicant’s ERISP suggested that the complainant “freely and consciously entered the bushes” immediately prior to the sexual intercourse. This was argued to be inconsistent with the complainant’s evidence that she did not know why she walked into the bushes and that she “wasn’t in a straight state of mind” and thought she was “just going for a walk”.

240. The applicant further submitted that the complainant’s evidence that she thought she was going to have a “normal conversation” with the applicant in the bush was inconsistent with her following evidence in cross-examination:

“Q. […] Would you agree with me if I said that prior to going to the bush you, [MB] and [the applicant] and Shamsul were engaging in conversation? Would you agree with that?

A. I didn’t conversate so no.

Q. That you were engaging in conversation in a friendly manner with [the applicant]?

A. No.

Q. That was over a period of time of at least half an hour?

A. No

Q. And that –

A. I don’t talk to strangers.  ‘Cause I don’t like talking in general so why the fuck would I want to have a conversation with a person I hardly know?”

241. The applicant submitted that the complainant “freely and consciously entered the bushes with the applicant at the material time, notwithstanding the rest of [Wiley Park] was not occupied, save as to the presence of [MB] and [Shamsul].”

242. The respondent submitted that the complainant’s evidence “does not necessarily raise an inconsistency” and that even if it did raise an inconsistency, that inconsistency is “of little moment”. The respondent submitted that the complainant’s initial evidence on this topic was that “she did not know why she went into the bush, was not in a ‘straight state of mind’ and thought she was just going for a walk.” The respondent submitted that it may therefore be accepted that the complainant voluntarily entered the bush but submitted that that fact was not inconsistent with the complainant’s account of the sexual assault that followed. The respondent also pointed to other parts of the evidence which supported the complainant’s account that she believed she was entering the bush to have a “normal conversation”, such as her account to the triple-0 operator. Lastly, the respondent submitted that the complainant’s alleged inconsistency in her evidence of “why the fuck would I want to have a conversation with a person I hardly know” arose in circumstances “shortly after the trial judge had paused the complainant’s evidence because the complainant was upset, following cross-examination on details of sexual intercourse.”

How far away the applicant and complainant were from MB and Shamsul when the incident occurred:

243. The applicant pointed to the following parts of the evidence:

1. MB’s evidence that the bushes were “about 10-15 metres away from where she was sitting with [Shamsul].”

2. The complainant’s account in the triple-0 call that they “walked like two metres away from everyone.”

3. The complainant’s account in evidence-in-chief that it was “approximately five metres”.

244. The applicant submitted that “In those circumstances, taking the evidence in totality at its highest, the complainant and the applicant were no more than 3-4 metres away at all times, and at its lowest, they were no more than 10-15 metres away from [MB] and [Shamsul].” The applicant further submitted that the distance of the complainant from MB and Shamsul was “critical” because neither MB nor Shamsul “gave evidence of hearing the complainant screaming and/or observing anything untoward whilst she was in the bushes with the applicant. Their evidence on those two points is completely silent.”

245. The respondent submitted that the complainant’s evidence was that the distance was greater than the estimates she gave in the triple-0 call and the BWV interview. The respondent also pointed to exhibits including the aerial photographs (which included vehicles on the road which provided some indication of scale) as well as photographs of the location at ground level. The respondent also noted MB’s evidence that the applicant and complainant emerged at the light pole. The respondent submitted it was “open to the jury to find that the distance was indeed greater” and that “the complainant underestimated the distance in her triple-0 call and BWV interview.”

The events after the complainant and applicant arrived inside the bushes but before the incident:

246. The applicant submitted that in relation to the complainant’s evidence of what occurred immediately prior to the incident, there were “a number of discrepancies or displayed inadequacies, of such a character as to require the jury to have entertained a doubt.” The applicant pointed to the following discrepancies in the complainant’s account:

1. Whether the complainant was standing or sitting on the ground when the applicant started to choke her and pin her to the floor;

2. Whether the complainant was screaming at any point and to what extent;

3. Whether the applicant threatened the complainant’s family before she was choked.

247. The respondent submitted that in relation to the complainant’s variations in account of what happened immediately prior to the incident, none of them gave “rise to inconsistencies in evidence which mean that the jury ought to have entertained a doubt about whether the sexual intercourse was without consent and that the applicant knew the complainant was not consenting.”

248. The respondent submitted that in relation to the issue of screaming, “it was open to the jury to find that the complainant did not scream loudly, or loudly enough for [MB] to hear and/or if the complainant did scream, that other noise meant that [MB] did not hear her.” The respondent pointed to the complainant’s account in the triple-0 call and body-worn video in which she indicated that she tried to scream but that the scream was inaudible because the applicant covered her mouth or was choking her. The respondent further submitted that the complainant’s account was consistent with her and BB’s evidence at trial that she had lost her voice after the incident and that she had tried to scream but was “not able to make any sounds.” The respondent also submitted that “It was open to the jury to find that the threats inhibited the complainant from screaming during the sexual assault."

249. The respondent ultimately submitted that “it was open to the jury to find that the applicant covered the complainant’s mouth, preventing her from screaming; that he grabbed at her neck but did not actually choke her or cause her actual bodily harm; and/or that he made threats to stop her making noise.” The respondent submitted that it was also open to the jury to find that even if the complainant did audibly scream, that MB did not hear it as Shamsul was “playing music at maximum phone volume.” The respondent noted that the bush was proximate to King George’s Road and that there was the possibility of background noise from the road or otherwise.

The details of what hand or hands were used to choke the complainant and how she was pinned down:

250. The applicant submitted that the complainant gave evidence that once she was on the ground, both of the applicant’s hands were on her neck and his knees were on her arms. The applicant then pointed to the complainant’s evidence that “as she was being choked by the applicant with one of his knees on her arm, he was able to pull her pants down”. The applicant submitted that as a matter of “logic and sheer mechanics, the likelihood of the applicant simultaneously choking the complainant, with his knee on one of her arms, whilst being able to pull her pants down, is highly improbable” and that this was particularly so in light of the applicant and complainant’s proximity to MB and Shamsul. The applicant further submitted that at this point, the jury “must [have] or ought to have entertained a doubt as to the guilt of the applicant.”

250. The respondent submitted that “Whatever the precise mechanism by which the complainant’s arms were held down, the complainant was consistent in her evidence and accounts that she was held down, or ‘pinned’ to the ground [by the applicant], for non-consensual penile-vaginal penetration.” The respondent submitted that it was open for the jury to accept the complainant’s evidence and to find that “any particular inconsistency, or inconsistencies taken together, did not derogate from the overall cogency of the evidence as to the critical elements of count 3 on the indictment.”

How the complainant left the bushes:

252. The applicant submitted that the complainant’s account in the body-worn video of running out of the bushes was inconsistent with MB’s evidence at trial and the complainant’s other accounts in which the complainant was described as walking out of the bush.

253. In summary, in light of these discrepancies and considering the applicant’s voluntary account of events, including the admission to sexual intercourse, the applicant argued that it was not open to the jury, acting rationally, to conclude that the respondent had eliminated all reasonable doubt. The applicant further submitted that:

“Having regard to the various inconsistent histories provided by the complainant concerning the matters immediately prior to the subject incident, the applicant submits these matters either individually and/or collectively must have adversely affected the jury’s assessment of the complainant’s evidence (in terms of its reliability and/or credibility) to such an extent, that the jury must have entertained a doubt with respect to the guilt of the applicant.”

254. The respondent contended that the central allegation of sexual assault made by the complainant was consistent, and that was supported by the compelling evidence of the immediate complaint by the complainant to several witnesses. The respondent contended that even if there were some inconsistencies, the sufficiency and quality of the central evidence at trial was such that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 3.

Consideration of Ground 1

255. Having carefully considered the evidence in the trial and the submissions of the parties, I am not of the view that any of the identified discrepancies undermined the central evidence of the complainant such that the jury must have entertained a reasonable doubt.

256. I make the following observations. One of the matters particularly relied upon by the applicant was that the other witnesses in Wiley Park on the evening in question (particularly MB) did not give any evidence about hearing the complainant screaming, notwithstanding their close proximity to the location of the incident. As noted above, however, the complainant’s evidence was that the distance was greater than the estimates given by her in the triple-0 call and to the police officer in the body-worn video. Further, there was objective evidence available to the jury that the distance was indeed greater than the complainant’s first report. The evidence as to the approximate locations of where the group was seated in the park on 25 December 2018 and where the incident took place was marked by the complainant with a black “X” in two aerial photographs of the park, which were before the jury. The other photos also tendered before the jury were taken from ground level and made clear that the distance in question was more than the complainant initially reported.

257. The respondent’s submission that the distance between the bush and where MB and Shamsul were sitting was not a detail that the complainant had reason to carefully observe at the time of the incident, and would not be expected that it would be a central detail in her memory, is cogent. Further, matters including the complainant’s consumption of alcohol (which would indicate she was under some degree of intoxication), the time of the incident (that is, in the evening), and the age and lack of sophistication of the witness would further affect an accurate assessment of the distance.

258. The jury was clearly entitled to make an assessment of the distance from the whole of the evidence including the aerial and ground photography as well as the accounts from the witnesses.

259. As to another key factor relied upon by the applicant, that being why MB did not hear the complainant screaming, I agree with the respondent’s submission that it was open to the jury to find that the complainant did not scream loudly, or loudly enough, or that other noise meant that MB did not hear her. I also note that the complainant referred more than once to her trying to scream or starting to scream. It was open to the jury to find that the complainant either started to scream but did not or could not ultimately do so, or that if she did, it was not loud enough for MB to hear. It can be noted that the photographs tendered in evidence showed the bush was proximate to King George’s Road, and the evidence from MB was that music was playing on Shamsul’s phone at maximum volume.

260. Having reviewed the evidence in detail, I am of the view that the verdict of guilty on count 3 was indeed well open to the jury. The essential account of the complainant was powerfully consistent in relation to the central allegation of sexual assault. Further, there was immediate complaint by the complainant that she had been “raped”. This complaint was made within minutes to MB, and shortly thereafter to BB, and again later that evening to the triple-0 operator and to the police who attended the Campsie house. The complainant was clearly distressed at that time.

261. That the order or details of some aspects of the account were not consistent is not unusual, as observed by McCallum JA in RA v R [2020] NSWCCA 356 at [45]: “It is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred.” And as McHugh J stated in the passage from M (above at [236]):

“If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

262. The jury was entitled to come to the view that any discrepancies did not undermine the complainant’s core account of the allegation. In addition, the jury was entitled to take into account the inherent implausibility of a 16 year old girl, who is a lesbian and who has stated that she did not like men, having hasty consensual penile/vaginal intercourse with a man more than double her age, who spoke very limited English, in a park at night.

263. It was clear that the jury gave careful attention to their deliberations, requesting the transcript of the key witnesses, requesting the directions on consent to be repeated, and taking many hours over several days to reach their verdicts. The inconsistencies were clearly spelled out for the jury for its consideration. The jury was entitled to take into account the lack of sophistication and lack of composure shown by the complainant during many parts of her evidence. It was open to the jury to take account of these factors when determining the complainant’s evidence as a whole. The jury reached different verdicts on the three charges, further indicating the care with which they approached their task.

264. Having assessed the evidence in light of the unimpeachable directions from the experienced trial judge, I am of the view that on the whole of the evidence, it was open to the jury to convict the applicant in relation to count 3.

265. I am of the view that Ground 1 should be rejected.

Ground 2: The verdict of guilty in relation to count 3 was inconsistent with the verdicts of count 1 and 2.

General principles

266. The test is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ) (“MacKenzie”). The law in relation to inconsistent verdicts is conveniently summarised by Leeming JA, Garling and Adamson JJ agreeing, in Nadin (a pseudonym) v R [2022] NSWCCA 284 at [17]-[19]:

“This ground may only be made out if the applicant satisfies the Court, that ‘[the verdicts] cannot stand together’, which is to say that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. The joint judgment continued at 367 (citation omitted):

‘[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.’

As stated in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]:

‘In determining whether convictions are unreasonable, ... the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis.’

The principles applicable to a ground of appeal based on inconsistent verdicts have been applied in this Court on numerous occasions subsequently, including Roos v R [2019] NSWCCA 67 at [42]-[44], Pethybridge v R [2020] NSWCCA 185 at [80] and Dellow v R [2020] NSWCCA 301 at [21]-[22].”

267. Further, the following passage from MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (“MFA”), Gleeson CJ, Hayne and Callinan JJ importantly said:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

268. Importantly, in MacKenzie at 367 it was noted:

“In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.

Submissions

269. The applicant contended that it was implicit in the acquittals for counts 1 and 2 that the complainant’s evidence was rejected. Further, it was contended that this was not a case where there were significant periods of time between the alleged acts which formed the basis of each count. Rather, the three counts were, in effect, all derived from the one continuous event. Given the intertwined nature of the complainant’s evidence with respect to all three counts, the applicant submitted that the jury could not have properly concluded that the evidence about counts 1 and 2 led to a different verdict to count 3.

270. The respondent contended that the acquittals can be reconciled with the verdict of guilty for count 3. The verdicts can stand together on the basis that the jury did not reject the complainant’s evidence as unreliable or untruthful, but, in relation to the verdicts of acquittal, found that the evidence was insufficient to establish, to the requisite criminal standard, either “choking” or “actual bodily harm”.

Consideration of Ground 2

271. I am of the view that the verdicts of acquittal can be logically and reasonably explained. The jury may have been satisfied on the evidence that the complainant’s account in relation to the choking and actual bodily harm was likely, even probable, but, in accordance with the observations of the High Court in MFA, the jury was being careful to take its task seriously, fully aware of the heavy burden of proof on the respondent and discharging its weighty responsibility cautiously.

272. In coming to its verdicts, the jury was entitled to take into account, in assessing the evidence and whether they were satisfied beyond reasonable doubt of the elements of the offences, that whilst there were immediate complaints of “rape” to MB and BB, there were no such immediate reports of choking or other harm.

273. The jury was further entitled to take into account that SC Foggorty did not record any marks on the complainant’s neck on the night of the incident, nor were there any injuries noticed by Constable Warner, who saw the complainant on 27 and 30 December 2018 in the course of taking her statement. Further, it was open to the jury to take into account the St George Hospital notes recorded on 26 December 2018, which stated that “some marks noted to Lt side neck”, “Cervical spine – non tender, no bruising neck”, “No further neck pain” and “States nil neck pain (at the time of reporting)”. It was also open to the jury to take into account the evidence of Ms Jiang that the petechiae could possibly have been caused by the application of force but also by a love bite or hickey. The photographs of the complainant from 30 December 2018 also did not show any marks on the complainant’s neck, with the respondent submitting in its closing address that it was not surprising that the injuries did not appear in the photographs because the injuries were not necessarily there for long.

274. The jury was appropriately directed in relation to the meaning of choke, intention, and actual bodily harm.

275. The indeterminate nature of the marks on the complainant’s neck left it open to the jury to accept that the applicant grabbed the complainant by the neck but not to be satisfied beyond reasonable doubt that such actions amounted to intentional choking or causing actual bodily harm in accordance with the legal definitions of those terms. The physical evidence of marks on the complainant’s neck were such that a jury may have found that the injuries were in effect superficial and short-lived. It does not follow that the complainant’s evidence was necessarily rejected as untruthful or unreliable.

276. The verdicts are clearly reconcilable. The most immediate complaints concerned the central allegation of sexual assault, but did not include an account of choking or other harm. As discussed in relation to Ground 1, there was ample evidence to support the complainant’s account of sexual assault and the verdict for count 3. The outcome reflected that the jury followed the trial judge’s instructions to consider separately the case presented by the respondent in respect of each count and applied a cautious approach in the discharge of their task.

277. I am of the view that Ground 2 should be rejected.

Proposed Orders

278. The orders I propose are:

1. Time in which to seek leave to appeal extended to 22 April 2022;

2. Leave granted to appeal against conviction;

3. Appeal dismissed.

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Endnotes

Decision last updated: 17 February 2023