Khamis v R; Hussain v R

[2018] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Khamis v R; Hussain v R [2018] NSWCCA 131
Hearing dates:	20 November 2017
Decision date:	29 June 2018
Before:	Gleeson JA at [1] Fullerton J at [87] Button J at [88]
Decision:	(1) Extend the time for Rafal Raad Khamis to appeal against his conviction. (2) Leave to appeal against conviction is granted to Rafal Raad Khamis. (3) The appeal against conviction of Rafal Raad Khamis is dismissed. (4) Leave to appeal against conviction is granted to Ather Hussain. (5) The appeal against conviction of Ather Hussain is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – conviction of each appellant of one count of aggravated sexual assault – Crimes Act 1900 (NSW), s 61J – where Crown prosecutor opened to jury on more allegations than those about which complainant gave evidence – whether convictions bad for lack of particularity – whether convictions unreasonable or cannot be supported by the evidence – Criminal Appeal Act 1912 (NSW), s 6 (1) – whether evidence insufficient to establish elements of consent and knowledge of absence of consent – Crimes Act, s 61HA – where not guilty verdicts on another count – whether verdicts inconsistent and unreasonable
Legislation Cited:	Crimes Act 1900 (NSW), ss 61H, 61HA, 61J Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 38
Cases Cited:	Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 FP v R [2012] NSWCCA 182 Irwin v The Queen [2018] HCA 8 Lazarus v R [2016] NSWCCA 52 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 PA v R [2015] NSWCCA 18 R v Markuleski (2001) 52 NSWLR 82; [2002] NSWCCA 290 R v Murray (1987) 11 NSWLR 12 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 W v R [2014] NSWCCA 110
Category:	Principal judgment
Parties:	Rafal Raad Khamis; Ather Hussain (Applicants) Regina (Crown)
Representation:	Counsel: J Manuell SC (Applicant Khamis) G Wendler (Applicant Hussain) E Balodis (Crown)   Solicitors: Legal Aid Commission of NSW (Applicants) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/336403; 2013/336457
Publication restriction:	Non-publication order in relation to anything that might identify the complainant.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 06 May 2015 Before: Graham ADCJ File Number(s): 2013/336403; 2013/336457

Judgment

1. 1   GLEESON JA: Each of the appellants, Mr Rafal Khamis and Mr Ather Hussain, seek leave to appeal from their respective conviction on one count of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). Section 61J(1) creates an offence where a person has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and knows that the other person does not consent to the sexual intercourse. Section 61J(2) defines the meaning of the expression “circumstances of aggravation” as including where the alleged offender is in the company of another person or persons: s 61J(2)(c).

2. The appellants were each charged with four offences of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. The alleged offences occurred between 10 and 13 February 2013. The trial in the District Court at Parramatta commenced on 13 April 2015. At the conclusion of the prosecution case, the trial judge (who heard the case with a jury) entered a verdict by direction of not guilty on counts 2 and 3, there being no evidence in the Crown case in support of those counts. Each of the appellants gave evidence and called other witnesses. The jury returned a verdict of not guilty on count 4 with respect to each appellant, and a verdict of guilty with respect to each appellant on count 1.

3. Each of the appellants was sentenced to imprisonment by the trial judge. There is no application for leave to appeal against sentence and the relevant non-parole periods of the sentences have now expired.

4. Mr Khamis requires an extension of time with respect to his appeal. That is not opposed by the Crown and for the reasons given by Button J an extension of time should be granted.

Grounds of appeal

5. Mr Khamis advances two grounds of appeal. The first ground is that the trial miscarried because counts 1 and 2 were not properly particularised. I agree with Button J, for the reasons given by his Honour, that this ground of appeal should be rejected.

6. The remaining ground advanced by Mr Khamis, although expressed a little differently to the single ground of appeal advanced by Mr Hussain, raise the same issue: whether in each case the guilty verdict on count 1 is “unreasonable or cannot be supported by the evidence” relying on s 6(1) of the Criminal Appeal Act 1912 (NSW).

7. This ground has two aspects. First, whether the guilty verdicts are unreasonable on the basis that the evidence was insufficient to establish the elements of consent, and knowledge of Mr Hussain and Mr Khamis of the absence of consent. Second, whether the jury’s verdicts are unreasonable, because, it is submitted, the not guilty verdicts on count 4 are inconsistent with the guilty verdicts on count 1.

8. With respect to the unreasonable verdict ground of appeal, I respectfully disagree with the conclusion of Button J that the appeal against conviction by each appellant should be upheld. It follows that I do not agree with the orders proposed by his Honour to the extent that those orders include that the conviction of each appellant be quashed and a verdict of acquittal be entered.

9. For the following reasons, I would propose that each appeal against conviction be dismissed.

The elements of the offence of aggravated sexual assault

10. The elements of the offence under s 61J(1) of the Crimes Act, where the circumstances of aggravation are that the accused was in company of another person (s 61J(2)(c)), are that the accused:

1. had sexual intercourse with the complainant;

2. without the consent of the complainant;

3. knowing the complainant did not consent;

4. in the company of another person or persons.

11. For the purposes of Div 10 of Pt 3 of the Crimes Act, which includes s 61J(1)), “sexual intercourse” is defined in s 61H(1) to mean, relevantly for this case, sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any person by any body part of another person (sub-par (a)) or the continuation of sexual intercourse as defined in sub-pars (a), (b) or (c) (sub-par (d)).

12. As to the second element of the offence under s 61J(1), s 61HA(2) provides that a person consents to sexual intercourse if the person freely and voluntarily agrees to sexual intercourse. (This provision applies in relation to sexual assault offences under, relevantly, s 61J: s 61HA(1)). Section 61HA(7) provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to sexual intercourse.

13. As to the third element of the offence under s 61J(1), s 61HA(3) provides that an accused who has sexual intercourse with a complainant, has knowledge that the complainant does not consent if the accused:

1. knows the complainant does not consent; or

2. is reckless as to whether the complainant consents; or

3. has no reasonable grounds for believing the complainant consents.

14. In determining whether the accused has knowledge that a complainant does not consent to sexual intercourse, the tribunal of fact (in this case, the jury) must have regard to all the circumstances, including any steps taken by the accused to ascertain whether the complainant consented: s 61HA(3)(d).

15. The third of the different ways in which the inculpatory state of mind of an accused person can be proven under s 61HA(3)(c) imposes an objective test, “in the sense that (ignoring the onus of proof) the grounds which might lead to a belief of consent must be objectively reasonable”: Lazarus v R [2016] NSWCCA 52 at [156] (Fullteron J, Hoeben CJ at CL agreeing). The question is whether the accused himself might have believed in all the circumstances in which he found himself that the complainant was consenting to sexual intercourse and whether there might have been reasonable grounds for that belief: Lazarus v R at [156].

16. As to the fourth element of the offence under s 61J(1) where the circumstances of aggravation are that the accused was “in company”, that expression in s 61J(2)(c) involves the following components: FP v R [2012] NSWCCA 182 at [126] (R A Hulme J, McClellan CJ at CL and Schmidt J agreeing):

1. that the alleged co-offender (in this case, Mr Hussain for count 1) had sexual intercourse with the complainant without her consent, knowing that she was not consenting;

2. that the other person (in this case, Mr Khamis) shared a common purpose that this would occur; and

3. that the other person (Mr Khamis) was physically present when it occurred, such presence being sufficiently proximate if:

1. it afforded encouragement to the alleged co-offender; or

2. it operated to intimidate or coerce the complainant:

The proceedings and evidence at trial

17. At the trial there was no issue as to sexual intercourse within the definition in s 61H(1)(a); the consent of the complainant was in issue; the knowledge of both Mr Hussain and Mr Khamis of the absence of consent was in issue; and whether Mr Khamis shared a common purpose that Mr Hussain have sexual intercourse with the complainant without her consent, knowing that she was not consenting was also in issue.

18. No complaint is made on appeal by Mr Khamis or Mr Hussain with respect to his Honour’s summing-up or the directions given to the jury.

19. In this regard, Mr Hussain’s written submissions accepted that the trial judge’s directions concerning the elements of the offences to be proved by the prosecution in respect of counts 1 and 4 were correctly stated and defined by the trial judge; that the summing-up contained the usual warnings given to a jury when considering a case that depends substantially upon the testimony of one witness, namely, a Murray direction (R v Murray (1987) 11 NSWLR 12); that the trial judge gave a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290); and that the summing-up also contained the usual directions concerning the character evidence of Mr Hussain and the usual warnings concerning corroboration by complainant evidence. There was also a Black direction concerning count 4 (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71).

20. A detailed and comprehensive review of the evidence and the course of the trial is provided in the judgment of Button J. These reasons assume a familiarity with that review. Nonetheless, an understanding of the arguments on appeal is assisted by a brief outline of the Crown’s case at trial with respect to the four counts.

The Crown case

21. At the time of the alleged conduct in February 2013, the complainant had just turned 17 years of age. She lived with her parents in south-west Sydney. The appellants were both 19 years old. The complainant first met Mr Khamis, and his cousin, Mr Hussain, at a shopping centre at Liverpool on 31 January 2013. Following the exchange of FaceBook messages and some mobile phone calls between Mr Khamis and the complainant, they met by arrangement at Casula Mall on 11 February 2013 at about 9:15pm. Mr Hussain was also present. After driving around in a car for a while, they went to a motel and the complainant was left alone with Mr Khamis while Mr Hussain left to get a phone charger. During the time Mr Hussain was away (about 45 minutes), Mr Khamis had consensual sexual intercourse with the complainant.

22. After Mr Hussain returned, all three lay on the bed. The complainant was in the middle between Mr Khamis and Mr Hussain. All three watched a video on Mr Khamis’ phone. The Crown alleged that Mr Hussain began touching and rubbing the complainant’s leg. She turned away from him. She gave evidence that Mr Hussain had masturbated and ejaculated over her leg. The complainant also gave evidence that Mr Hussain’s interest in her continued:

He [Hussain] … was just fingering me like that, and that’s when I grabbed Rafal’s [Khamis] hand, and I was telling, pulling Raf’s hand down towards my vagina to show him and to tell him like, look what your cousin is doing to me, you know. Don’t let it happen and he laughed. He lifted up the blanket and looked and laughed at me and put the blanket back down and didn’t say anything. And then when I said, “Raf” and I was punching him in the arm and pinching him telling him, “can you please tell your cousin to stop”. (Emphasis added)

23. The Crown case, as put to the jury in closing address, was that from that point, when the complainant said, “Can you please tell your cousin to stop”, there was sufficient knowledge for both Mr Khamis and Mr Hussain that the complainant was not consenting. The Crown case was that Mr Khamis had by then knowledge of Mr Hussain’s actions and endorsed them by laughing.

24. From that point in time, according to the Crown case, Mr Khamis and Mr Hussain were in agreement that Mr Hussain would have sexual intercourse with the complainant who was not then consenting to their knowledge. Mr Hussain proceeded to have sexual intercourse with the complainant and the Crown alleged that Mr Khamis participated in the joint criminal enterprise by, amongst other things, advising Mr Hussain not to wear a condom and saying to the complainant, “Don’t worry [name of complainant] you’ll like it”. The Crown submitted to the jury that Mr Khamis emboldened Mr Hussain and intimidated the complainant. The penile-vaginal intercourse between Mr Hussain and the complainant, in company with Mr Khamis, was the subject of count 1 for which Mr Khamis and Mr Hussain were both found guilty.

25. The Crown had alleged that Mr Hussain had sexual intercourse with the complainant on two closely related occasions. The second occasion was the subject of count 2. But the complainant gave evidence of only one occasion. The Crown also alleged that Mr Khamis subsequently engaged in penile-vaginal intercourse before penile-anal intercourse and these were the subject of counts 3 and 4. The complainant did not refer in her evidence to the penile-vaginal intercourse, only the penile-anal intercourse. As indicated, the trial judge entered a verdict by direction of not guilty on counts 2 and 3, and the jury returned a verdict of not guilty on count 4 with respect to both appellants.

Unreasonable verdict - relevant principles

26. The principles relevant to a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well-established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, French CJ, Gummow and Kiefel JJ said at [11]-[14]:

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen [(2002) 213 CLR 606 at 623-624 [58]] McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses [M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ]. However, the joint judgment in M went on to say [at 494]:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

…

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’ [Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ]. In M, Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493]:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.

27. However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63, cited in SKA v The Queen at [13] (which is extracted at [26] above). If, after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice. See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [26], [55]-[56].

28. This point was reiterated in W v R [2014] NSWCCA 110 by Bathurst CJ who observed at [151], that it is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or as in that case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. In a passage with which Gleeson CJ and Heydon J agreed, Hayne J made the following remarks:

[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [M v The Queen (1994) 181 CLR 487 at 492-493]. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.

(Emphasis in the original).

29. Accepting as stated in SKA v The Queen, the Court must make its own independent assessment as to the sufficiency and quality of the evidence, which includes weighing the competing evidence, the relevant question is whether the jury must, as distinct from might, have entertained a doubt about each appellant’s guilt.

Submissions on appeal

30. The submissions of Mr Khamis and Mr Hussain on appeal and the response of the Crown are summarised in the judgment of Button J. Again, these reasons assume a familiarity with that outline of the competing submissions. For present purposes, it is sufficient to identify the core argument advanced by each of Mr Khamis and Mr Hussain.

Mr Khamis

31. Mr Khamis’ written submissions are directed to the argument that the jury ought to have had a reasonable doubt as to whether the complainant was in fact consenting to sexual intercourse with Mr Hussain, which, according to the submission, was a misjudgment that the complainant made and later regretted. In support of that argument, Mr Khamis made a number of submissions attacking the credibility of the complainant’s evidence.

32. Mr Khamis also submitted that despite the trial judge’s direction to the jury in accordance with Markuleski (to consider the accuracy or reliability of evidence relating to each count separately), the jury’s verdicts were inconsistent. According to the submission, the case in relation to count 4 was an “either or” case; either the complainant was distressed (as she said she was) and clearly communicated that distress to Mr Khamis in relation to the conduct the subject of count 4 (as she said she did) or she did not. The submission continued that the not guilty verdicts on count 4 could not be reconciled with the guilty verdicts on count 1.

Mr Hussain

33. Mr Hussain’s written submissions contended that the trial was not factually complex and the prosecution case ultimately depended upon whether, on the fundamental issue of consent, the jury considered the complainant a reliable and truthful witness. Mr Hussain made similar submissions to Mr Khamis attacking the credibility of the complainant’s evidence.

34. In addition, Mr Hussain pointed to a number of factors which, according to the submission, were capable of forming in the mind of Mr Hussain a reasonable and honest belief that the complainant was agreeable to sexual relations with him.

35. Mr Hussain further submitted that the not guilty verdicts on count 4 must have affected the credibility of the complainant generally on the issue whether she was agreeable to a sexual encounter involving both men, and accordingly, it was unreasonable for the jury not to have entertained a reasonable doubt about the guilt of Mr Hussain on count 1.

Decision

36. Having reviewed all of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of each appellant’s guilt in respect of the aggravated sexual assault offence the subject of count 1.

Did the Crown establish beyond reasonable doubt that the complainant did not consent to sexual intercourse?

37. The fundamental question is whether the complainant could be believed on the issue of consent. The complainant gave evidence at trial that she asked Mr Khamis to tell Mr Hussain to stop his sexual behaviour towards her when Mr Hussain was rubbing the area around her vagina. Against this, counsel for Mr Khamis submitted that on one reading of the complainant’s evidence, the sexual intercourse with Mr Hussain had commenced before there was any indication on the complainant’s part (to Mr Khamis) that she was objecting to sexual intercourse with Mr Hussain.

38. A review of the whole of the complainant’s evidence, both in-chief and in cross-examination, makes plain, as the trial judge stated in his summing-up, that the complainant gave evidence of asking Mr Khamis to intervene on three occasions.

39. The first occasion was when Mr Hussain was rubbing the area around the complainant’s vagina and she had pulled Mr Khamis’ hand down towards her vagina to show him what Mr Hussain was doing. Mr Hussain accepted in his evidence that this occurred, while Mr Khamis denied that this occurred. The complainant’s evidence was that Mr Khamis lifted the blanket and looked and laughed and then put the blanket back down and did not say anything and that at that point she said to Mr Khamis, calling his name, “Can you please tell your cousin to stop”.

40. In cross-examination the complainant gave evidence that as Mr Khamis had a closer relationship to Mr Hussain, she thought that maybe Mr Hussain would listen to Mr Khamis if Mr Khamis told him to stop; and that when Mr Khamis had laughed after he lifted the blanket and looked down and said nothing, her belief was that Mr Khamis did not care what happened to her at all.

41. The second occasion was after Mr Hussain had tried to put on a condom and he then lay on top of the complainant and inserted his penis into her vagina. The complainant’s evidence was that at this point she was pinching Mr Khamis and punching him in the arm, and she said to Mr Khamis, calling his name, “Get your cousin off me. I don’t want this”, and that Mr Khamis laughed and hopped out of the bed and said to her, ”Don’t worry, [XXX, referring to the complainant by her first name] you will like it” and walked away over to his phone before he later returned to the bed.

42. The third occasion was after the complainant had unsuccessfully attempted to push Mr Hussain off her body during sexual intercourse, by pushing the middle of his chest with her hands. The complainant’s evidence was that she called out to Mr Khamis to come over to the bed and lay back down and when he did the complainant said to Mr Khamis, “Please, can you get your cousin off me”, but Mr Khamis did not respond to her request. The complainant’s evidence continued that it was after Mr Khamis had not responded to her request that she pushed directly in the middle of Mr Hussain’s chest and told him to get off her and that she was going to have a shower. At that point Mr Hussain got off the complainant.

43. Thus there was an important difference in the complainant’s evidence concerning the language she used when she first protested to Mr Khamis to tell Mr Hussain to “stop”, and the latter occasions when Mr Hussain had commenced sexual intercourse and the complainant protested to Mr Khamis to tell Mr Hussain to “get … off me”.

44. The complainant’s account that she protested directly to Mr Khamis to tell Mr Hussain to stop when he was rubbing the area of her vagina, was supported by the evidence given by her friend (who it is convenient to refer to as Ms Johnson so as not to identify her). Ms Johnson gave evidence that the complainant told her during a telephone call the following morning that Mr Hussain had started “fingering” her and when Ms Johnson asked what she did in response, the complainant answered, “I was pinching [Mr Khamis’] leg and whispering to him, telling him, “Can you please tell your cousin to stop”. Whether the complainant spoke in a whisper or loud enough for Mr Khamis and Mr Hussain to hear is not determinative of the issue of consent, although it is relevant to the issue of knowledge of absence of consent (which is addressed below).

45. The jury was faced with a contest between the complainant’s evidence of her protest to Mr Khamis when Mr Hussain was rubbing the area of her vagina, but no protest directly to Mr Hussain either then or when he was attempting to put a condom on his erect penis, and the competing evidence of Mr Khamis that the room was silent, except for the unwrapping of the condom by Mr Hussain, and Mr Hussain’s evidence that he did not hear the complainant speak to Mr Khamis.

46. It can be accepted that there were aspects of the complainant’s evidence that should have caused the jury to approach the complainant’s credibility with a degree of caution on the issue of consent. The following matters were raised by the appellants directed to the sufficiency and quality of the complainant’s evidence.

47. First, there was an inconsistency between the complainant’s evidence-in-chief that Mr Hussain penetrated her vagina with his fingers when he was rubbing the area of her vagina and her evidence in cross-examination that she could not recall if Mr Hussain pushed his fingers in or not. In this regard, the history given by the complainant to Dr Isaacs, who examined the complainant the following evening following her attempted suicide, also referred to Mr Hussain putting his finger into the complainant’s female genitals.

48. However, that the complainant was uncertain in her evidence as to whether Mr Hussain’s fingers penetrated her when he was rubbing the area of her vagina, could be viewed by the jury as showing her honesty in her recollection at trial. It does not necessarily detract from her evidence that she protested to Mr Khamis when this conduct was occurring and that he ignored her protest.

49. Second, there was an inconsistency between the complainant’s evidence-in-chief that she heard the rustling of what she presumed to be a condom and her earlier police statement, which she accepted in cross-examination, that she saw Mr Hussain attempting to put a condom over his erect penis. However, that difference in the complainant’s evidence could have been viewed by the jury as consistent with her fading memory over two years concerning what she saw.

50. Third, while the history given by the complainant to Dr Isaacs was seemingly incomplete on the Crown case, that needs to be viewed in context. The history was given by the complainant at 8.45pm on 12 February 2013 approximately 17 hours after the alleged events, and after the complainant had attempted suicide. The summary by Dr Isaacs recorded only some direct quotes from the complainant and the Crown correctly emphasised that the summary obviously lacks detail (referring to the complainant describing a four-hour period over which she was subjected to repeated vaginal and one episode of anal penetration without consent by two men) and is the Doctor’s summary in the Doctor’s words.

51. It can be inferred from the divergences between the Crown opening at trial and the absence of evidence given by the complainant leading to the verdicts by direction on counts 2 and 3, that she had made more extensive allegations before the trial than she did in her evidence. However, the lack of evidence to support counts 2 and 3 is equally consistent with a failure of memory as the detail of all the events in the motel room.

52. Fourth, that the complainant spoke to a male friend the following morning of having “done something wrong”, having “slept with two guys” and she “felt dirty and just want to die”, and her suicide note referred to “mistakes” of the complainant, as opposed to having been sexually assaulted by one man while the other man ignored her protest, were matters to be weighed by the jury in the context in which those statements were made by the complainant.

53. The complainant’s evidence was that she spoke to her male friend after she had consumed three quarters of a bottle of vodka and before she started projectile vomiting. It was open to the jury to infer that this level of alcohol would have affected her ability to fully explain what occurred.

54. As to the suicide note, the complainant gave evidence that she had not wanted to fully explain why she intended to suicide. Her note was incomplete as to her motive and it was open to the jury to accept that it should not be taken as reflecting that she was merely concerned with her poor judgement. In addition, the jury had the evidence of Dr Isaacs that the sexual assault was a “plausible and consistent explanation” for the alcohol ingestion and self-harm by the complainant.

55. That the complainant regretted her poor judgment in accompanying the two men to the motel and staying in the room with them is not inconsistent with her being sexually assaulted. The jury had the advantage of seeing the complainant give her evidence and was better placed than this Court to assess the credibility of her explanation for her expression of regret the following morning and her attempt at suicide.

56. Sixth, that the complainant kissed both Mr Khamis and Mr Hussain goodbye on the cheek when they dropped her off at her home the following morning does not mean that the jury should have regarded her seemingly friendly behaviour at that time, while perhaps surprising, as inconsistent with an earlier sexual assault by Mr Hussain. The unstated premise of the appellants’ argument that the trauma of sexual assault only manifests itself by the victim raising a howl or scream of protest, should be rejected. That would be to ignore, as in this case, the young age of the complainant, her psychological problems, and the invidious position in which she found herself of having agreed to consensual sexual intercourse with one man but not with another, who as the trial judge described in his summing-up to the jury was the “third wheel” in the room.

57. Seventh, I do not regard it as necessarily odd that the complainant said nothing whatsoever to Mr Hussain directly, but relied upon him hearing her expression of lack of consent to Mr Khamis. The complainant was a young girl aged 17 years who, after having consensual sexual intercourse with Mr Khamis, came to be in bed with both men watching a video on Mr Khamis’ mobile phone, following Mr Hussain’s return to the motel room. The complainant’s evidence was that she adopted the approach of expressing her lack of consent directly to Mr Khamis, being the person she knew, in the presence of Mr Hussain, in the hope that Mr Khamis would intervene and direct his cousin (who she did not know) to stop his sexual behaviour towards her. That the complainant might have expressed her lack of consent in a more direct way to Mr Hussain is not inconsistent with her not consenting to sexual intercourse with him.

58. Eighth, the submission by Mr Khamis that the verdicts on counts 1 and 4 are inconsistent, and the related submission by Mr Hussain that the not guilty verdict on count 4 must have affected the credibility of the complainant generally, in particular on the issue of consent on count 1, should be rejected. In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ said at [34] that:

…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.

Their Honours’ continued at [34] noting that a jury may also draw back from reaching a conclusion beyond reasonable doubt about some part of a complainant’s evidence because 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.

59. In this regard, as mentioned, no complaint is made by Mr Khamis or Mr Hussain in relation to the adequacy of the trial judge’s direction to the jury to consider the accuracy or reliability of evidence relating to each count separately: R v Markuleski.

60. In PA v R [2015] NSWCCA 18 at [71], Hamill J summarised how a contention of inconsistent verdicts should be dealt with:

The question of whether verdicts are factually inconsistent so as to give rise to a finding that the guilty verdict is unreasonable requires consideration of whether there is any explanation in the evidence for the different outcomes or whether the verdicts represent “an affront to logic and commonsense”: see MFA v R at [34] (Gleeson CJ, Hayne and Callinan JJ) and [85]-[86] (McHugh, Gummow and Kirby JJ). Where the prosecution case depends solely or largely on the evidence of one witness, the question is whether the circumstances are such that the acquittal means that the credibility of the witness was damaged with respect to all counts or whether the evidence may have been more reliable in respect of the count or counts where there was a guilty verdict: Jones v R [1997] HCA 56; 191 CLR 439 at 453 (Gaudron, McHugh and Gummow JJ). Ultimately, the test is unreasonableness rather than inconsistency and the question turns on the application of the statutory language in s 6(1) Criminal Appeal Act 1912 (NSW) as explained by the High Court in M v R [1994] HCA 63; 181 CLR 487: see MFA v R at [25], [36] and [59]. The Court must “examine any differentiation in the verdicts to see if it can be justified”: MFA v R at [89].

61. The acquittal of Mr Khamis on count 4 can be explained by the jury not being satisfied of Mr Khamis’ knowledge of the complainant’s lack of consent. The alleged offending the subject of counts 1 and 4 can be differentiated, given the earlier act of consensual sexual intercourse between the complainant and Mr Khamis, the conduct of the complainant in allowing Mr Khamis into the shower with her after the alleged sexual assault by Mr Hussain the subject of count 1, and the absence of any words of protest by the complainant in her evidence before the jury in relation to the occasion of penile-anal intercourse with Mr Khamis the subject of count 4.

62. The acquittal of Mr Hussain on count 4 can be explained by the jury not being satisfied of his role as being “in company”, as well as not being satisfied of Mr Khamis’ knowledge of the complainant’s lack of consent. For count 4, Mr Hussain gave evidence that he was asleep and did not remember what happened after his conduct the subject of count 1. Mr Khamis had given evidence confirming that Mr Hussain was asleep and was facing the wall.

63. Ninth, that the complainant and Mr Khamis had earlier had consensual intercourse at the motel while Mr Hussain was away did not indicate a willingness by the complainant to engage in consensual sexual intercourse with both Mr Khamis and Mr Hussain, or when both of them were present.

64. Weighing all the evidence in particular, the absence of protest by the complainant directly to Mr Hussain when he was rubbing the area of her vagina and then attempting to put a condom on his erect penis in the context of the complainant’s evidence that she had protested directly to Mr Khamis who she saw as more likely to persuade Mr Hussain to stop his sexual behaviour towards her, but Mr Khamis had laughed and then encouraged Mr Hussain not to use a condom, I do not experience a reasonable doubt about whether the complainant was consenting.

65. In my view, it was open to the jury to be satisfied that although the complainant did not say anything to Mr Hussain when she heard and saw him with the condom, the absence of protest by her at that point was not consent by her to sexual intercourse with Mr Hussain, given that immediately before this, she had requested Mr Khamis to tell Mr Hussain to stop rubbing the area of her vagina, he had laughed, he had ignored her request to come to her assistance and he had encouraged Mr Hussain not to use a condom.

Whether the Crown established beyond reasonable doubt that Mr Hussain knew that the complainant was not consenting?

66. The focus of the argument on appeal on the issue of knowledge of the absence of consent was directed to whether Mr Hussain had no reasonable grounds for believing that the complainant was consenting to sexual intercourse. As indicated, for that purpose, the jury (as the tribunal of fact), was required to have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether the complainant consents to the sexual intercourse: Crimes Act, s 61HA(3)(d).

67. There was no suggestion in the evidence that Mr Hussain took any direct steps to ascertain whether the complainant consented to the sexual intercourse. That the complainant and Mr Khamis had earlier had sexual intercourse while Mr Hussain was away from the motel could not be taken as an indication of a willingness by the complainant to also engage in sexual intercourse with Mr Hussain, let alone when Mr Khamis was present.

68. Mr Hussain’s evidence was that he had rubbed the complainant’s upper right thigh for three to five minutes “to see if she was willing or not”, that the complainant did not say anything and he proceeded to rub “her private parts” from the outside” and then the area of her vagina for about four to five minutes because “I wanted to find out whether she wanted to sleep with me or not”, by which Mr Hussain said in his evidence he meant if she wanted to have sex with him. Mr Hussain’s evidence was that the complainant didn’t say anything when he attempted to put on the condom, and he thought the complainant was consenting.

66. Mr Hussain accepted in cross-examination that he did not know whether the complainant wanted to have sex or not by being at the motel room. As to whether he took from the fact that the complainant was in bed without her jeans on meant that she wanted to have sex with him, Mr Hussain answered equivocally “I don’t know; maybe yes maybe no”. Mr Hussain accepted that there was no intimate touching by the complainant, that she did not say anything to him and she did not kiss him.

67. As to the significance of the condom, Mr Hussain was encouraged not to use a condom not by anything the complainant said or did, but by Mr Khamis who, according to the complainant’s evidence, told Mr Hussain not to use a condom, that she was on the pill and not to worry that it would be fine. In this regard, Mr Khamis accepted in cross-examination that he might have told Mr Hussain not to use a condom.

68. As to whether Mr Hussain heard the complainant ask Mr Khamis to stop rubbing the area of her vagina and later to get off her, Mr Hussain accepted in cross-examination that if the complainant had said something to Mr Khamis he would have been able to hear, although Mr Hussain added that he did not hear the complainant say anything to Mr Khamis. Although Mr Hussain’s evidence was that his command of the English language was limited in February 2013, there was no suggestion in the evidence that he did not understand at that time the words “stop” or “get off me”. The jury had the advantage of seeing him give his evidence two years later (when he said his command of the English language had improved), and assessing his denial that he did not hear the complainant speaking to Mr Khamis.

69. Counsel for Mr Khamis emphasised in submissions that the complainant’s evidence that she told Mr Khamis in a voice loud enough for him and Mr Hussain to hear to tell Mr Hussain to stop (when he was rubbing the area of her vagina), was inconsistent with what the complainant told her friend (Ms Johnson) the next morning that she had “whispered” this to Mr Khamis. According to the submission, it was reasonably possible that Mr Khamis did not hear the complainant, if she did in fact say anything. Mr Khamis’ evidence was that the complainant did not speak to him at all, other than when Mr Hussain had got off the complainant and she said that she was going to have a shower.

70. The complainant’s evidence was that she did not remember saying to Ms Johnson the following morning that she was whispering things to Mr Khamis. When pressed, the complainant explained that when she got home she started drinking a bottle of vodka and she could not really remember anything that happened when she got home, but insisted that when she was in the motel room she was speaking loudly. Given her alcohol ingestion and attempt at suicide, the complainant’s lack of recollection of what she said to Ms Johnson the following morning is hardly surprising and it was open to the jury to accept this evidence.

71. The complainant’s evidence-in-chief was that she was punching Mr Khamis in the arm and pinching him and spoke loud enough for Mr Hussain to hear what she was saying to Mr Khamis. She adhered to that evidence in cross-examination after the proposition had been put to her that she had told Ms Johnson the following morning of “whispering” to Mr Khamis. The complainant’s evidence was that she spoke “out loud for all three of us to hear clearly”. Her evidence was that she said to Mr Khamis “Tell your cousin to stop” out loud, and that occurred “a fair few times as well”. She explained that she tried the option of asking Mr Khamis first to see what he would do. The complainant rejected the proposition that she only spoke to Mr Khamis in a whisper and insisted that she was speaking loudly.

72. The discrepancy between the complainant’s evidence of speaking loud enough for Mr Khamis and Mr Hussain to hear, and the evidence of Ms Johnson that the complainant referred to “whispering” to Mr Khamis, should have caused the jury to approach the complainant’s evidence with a degree of caution.

73. Nonetheless, the jury had the benefit of seeing the complainant, Mr Khamis, Mr Hussain and Ms Johnson give their evidence. The evidence of Mr Khamis that there was silence in the motel room except for the sound of something being unwrapped, possibly being a chocolate, was hardly compelling evidence as to the circumstances of what was occurring in the room given that Mr Hussain accepted that the complainant had taken Mr Khamis’ hand down towards her vagina when Mr Hussain was rubbing the area of her vagina. I do not consider that the jury must have entertained a doubt that Mr Khamis did not hear the complainant ask him to tell Mr Hussain to stop when she was punching him in the arm and pinching him, or that Mr Hussain did not hear what the complainant said to Mr Khamis given his immediate proximity to her at the time.

74. As to the complainant’s evidence that she pushed Mr Hussain twice in the chest to get him off her, it was submitted by Mr Khamis that, if the jury was satisfied that the complainant pushed Mr Hussain twice, there must have been a reasonable possibility that Mr Hussain did not feel the complainant’s first push since he was in the process of having sexual intercourse. Alternatively, Mr Khamis submitted that Mr Hussain did not recognise the first push as a rejection in the context of at least four to five minutes of foreplay, and his knowledge that the complainant saw him remove his clothing and try to put on a condom. According to the submission, these reasonable possibilities were, in turn, made more likely by Mr Hussain’s obvious willingness to stop having sex at the complainant’s request even though he did not reach the point of climax.

75. These submissions direct attention to the evidence given by the complainant and Mr Hussain. The complainant’s evidence was that she put her hands in the middle of Mr Hussain’s chest trying to push him off her, but the more that she did so the more he put his body pressure on her and weighed himself down on to her. The complainant’s evidence continued that she called out to Mr Khamis to come over to the bed and lay back down. (Mr Khamis had left the bed after Mr Hussain had commenced sexual intercourse with the complainant; he accepted in cross-examination that the bed was shaking and that he knew exactly what was happening. He said that he “didn’t want to be involved so I was on my phone”). The complainant’s evidence was that when Mr Khamis returned to the bed, she said to him, “Please, can you get your cousin off me”, but Mr Khamis did not respond to her request. It was at that point, according to the complainant’s evidence, that she pushed directly in the middle of Mr Hussain’s chest and told him to get off her and that she was going to have a shower, and Mr Hussain then got off the complainant.

76. Mr Hussain’s evidence was that there was only one occasion when the complainant put her hands on his chest to push him off. He denied that the complainant pushed him in the chest on two occasions and told him to get off. Again the jury had the advantage of observing the evidence given by the complainant and Mr Hussain concerning whether there was more than one push by the complainant on Mr Hussain’s chest to get off her.

77. Given the whole of the evidence, I do not experience a reasonable doubt about whether Mr Hussain had “no reasonable grounds for believing that the [complainant] consents to the sexual intercourse”: s 61HA(3)(c) of the Crimes Act. Whatever Mr Hussain’s subjective belief, in my view, it was open to the jury to be satisfied beyond reasonable doubt that he did not have reasonable grounds in all the circumstances for believing that the complainant was consenting to sexual intercourse with him.

Whether the Crown established beyond reasonable doubt that Mr Khamis knew that Mr Hussain had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and Mr Khamis shared a common purpose that this would occur and was physically present and participated in the offence?

81. Although Mr Khamis and Mr Hussain did not direct submissions specifically to this element of the offence, I will deal with it for completeness.

82. Reference has been made to the complainant’s evidence that after Mr Khamis had lifted the blanket and looked at what Mr Hussain was doing (rubbing the area of her vagina), Mr Khamis laughed, put the blanket back down, did not say anything and ignored the complainant’s request to tell Mr Hussain to stop.

83. Reference has been made to the complainant’s evidence of the encouragement given by Mr Khamis to Mr Hussain not to use a condom; he said to Mr Hussain that “it was alright” and “it was better without it” and that Mr Khamis said to the complainant “you’ll like it” when he left the bed. It was open to the jury to accept that these statements by Mr Khamis both emboldened Mr Hussain and intimidated the complainant.

84. Reference has also been made to Mr Khamis’ evidence in cross-examination that the bed was shaking, that he knew exactly what was happening, and that he “didn’t want to be involved so I was on my phone”. In addition, there was the complainant’s evidence that when Mr Khamis returned to the bed, he ignored her requests to tell Mr Hussain to get off her.

85. Given the whole of the evidence, I do not experience a reasonable doubt about whether Mr Khamis was in company with Mr Hussain. In my view, it was open to the jury to be satisfied beyond reasonable doubt that Mr Khamis shared the common purpose with Mr Hussain that Mr Hussain have sexual intercourse with the complainant without her consent, knowing that she was not consenting, and that he was physically present in the motel room and encouraged Mr Hussain and intimidated the complainant.

Conclusion and Orders

86. In my view, the appeal against conviction by each of Mr Khamis and Mr Hussain must fail. I propose the following orders:

1. Extend the time for Rafal Raad Khamis to appeal against his conviction.

2. Leave to appeal against conviction is granted to Rafal Raad Khamis.

3. The appeal against conviction of Rafal Raad Khamis is dismissed.

4. Leave to appeal against conviction is granted to Ather Hussain.

5. The appeal against conviction of Ather Hussain is dismissed.

87. FULLERTON J: I agree with Gleeson JA and the orders his Honour proposes. After considering the transcript of the evidence at trial, in particular the complainant’s evidence, including her cross-examination, and after taking into account the carefully structured directions of the trial judge (as to which there was no challenge on the appeal), I am satisfied it was open to the jury to return verdicts of guilty of both Mr Khamis and Mr Hussain on Count 1 of the indictment.

88. BUTTON J:

Introduction

89. Rafal Raad Khamis and Ather Hussain (the appellants) were arraigned before Acting Judge Graham and a jury panel in the District Court sitting at Parramatta on 13 April 2015. The indictment contained four counts. All of them averred that, between 10 February and 13 February 2013, both of the appellants had sexual intercourse with the complainant, without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that the two of them were in the company of each other.

90. Each of the appellants pleaded not guilty to all counts, and the trial commenced immediately.

91. At the end of the Crown case, a verdict by direction of not guilty was entered with regards to both appellants on counts two and three, on the orthodox basis that there was no evidence in the Crown case in support of those counts.

92. At the end of the trial, the jury returned a verdict of not guilty with regard to each appellant on the fourth count. However, the jury also returned a verdict of guilty against each appellant on the first count.

93. Thereafter, each of the appellants was sentenced to imprisonment by his Honour. Because there is no application for leave to appeal against sentence, and the non-parole periods of the sentences have expired in any event, they do not need to be discussed further.

94. An extension of time is required by Mr Khamis in order to prosecute the appeal. Evidence was provided of the logistical and administrative circumstances that have made it difficult for the appeal to be presented timeously. There was also evidence that, if his conviction is confirmed, he will be immediately deported from Australia. Finally, the Crown did not oppose the extension of time.

95. In my opinion, the combined effect of all of those factors is that an extension of time should be granted.

Grounds

96. Two grounds were relied upon by Mr Khamis:

97. 1.    The appellant appeals his conviction on the ground that his trial miscarried because counts 1 and 2 were not properly particularised.

98. 2.    The appellant seeks leave to appeal his conviction on the ground that his conviction was unreasonable, or could not be supported, having regard to the evidence.

99. A single ground was relied upon by Mr Hussain:

That having regard to the whole of the evidence at trial the verdict of the jury on count 1 on the indictment should be set aside as unreasonable within the meaning of s 6(1) of the Criminal Appeal Act1912 (NSW) and a verdict of acquittal entered on that count.

100. Although the second ground of Mr Khamis and the single ground of Mr Hussain were expressed a little differently, they are identical. For the convenience of the reader, I shall simply refer to that ground as “the second ground”.

101. Although both Mr Khamis and Mr Hussain require leave with regard to that shared ground founded on a question of fact, for the convenience of the reader I have referred to them consistently as “the appellants” in this judgment.

Overview of evidence, and relevant procedural aspects of the trial

102. The second ground calls for a detailed analysis of all of the evidence in the trial.

103. The first ground calls for analysis of relevant parts of the opening to the jury of the trial advocate for the Crown, the evidence in the trial, a question from the jury, the response of the three advocates to that question, the answer that the trial judge gave to that jury question, what the trial judge said to the jury when the two verdicts of not guilty were directed, the response of the three barristers to that, and a small portion of the summing up.

104. It is convenient now to summarise all of that material in the order in which it arose in the trial, rather than seeking to separate it out according to the ground to which it is relevant.

Crown opening

105. The trial advocate explained to the jury that his case was that on 31 January 2013, the complainant, a young woman then aged almost 17 years, met Mr Khamis and Mr Hussain at a shopping centre in the south-western Sydney suburb of Liverpool. At the time the complainant was with a female friend of hers whom I shall call Ms Johnson, in order to protect the privacy of the complainant. The two young men gave the two young women a lift to a different shopping mall, and the interaction between the four of them came to an end.

106. Between 1 February and 6 February 2013, the complainant and Mr Khamis exchanged Facebook messages. They also exchanged mobile phone numbers.

107. On 11 February 2013 at about 9:15 PM, Mr Khamis and the complainant met by arrangement at the second shopping mall. Mr Hussain was also present. The three of them drove around for a while, after which Mr Hussain left the vehicle. According to the Crown opening, Mr Khamis tried to kiss the complainant and touch her breasts while Mr Hussain was away from the car.

108. Eventually, the three young people decided to go and stay in a motel. Funds were obtained from an ATM for that purpose.

109. While at the motel, the complainant rang Ms Johnson on her mobile phone from outside the room.

110. Shortly after the arrival of the three of them, Mr Hussain left the room. Consensual sexual intercourse took place between the complainant and Mr Khamis, commencing with digital/vaginal sexual intercourse, and proceeding to penile/vaginal sexual intercourse.

111. The trial advocate made it clear in his opening that neither of those alleged acts of consensual sexual intercourse constituted any count on the indictment.

112. The opening continued to outline that Mr Hussain returned to the room. The three persons lay on the bed, with the complainant between the two young men.

113. The opening asserted that the complainant would give evidence that Mr Hussain placed his hand on her leg. As a result, the complainant drew to the attention of Mr Khamis what Mr Hussain was doing. It was further opened that each of the appellants pulled the covers over the three of them, and that Mr Hussain moved his hand towards the vagina of the complainant. After that, he placed his hand underneath her underpants and engaged in digital/vaginal sexual intercourse.

114. Again, the trial advocate opened that the complainant punched Mr Khamis lightly in order to inform him that she was not consenting to what was occurring. According to the opening, Mr Khamis looked underneath the covers and saw what was occurring, and reacted to it.

115. The opening continued that Mr Hussain stopped the digital penetration of the complainant of his own accord. After that, he engaged in conduct that led the complainant to believe that he was masturbating. Some time passed, after which Mr Hussain got out of bed, and the complainant saw that he was trying to put a condom on his penis. There was conversation between Mr Hussain and Mr Khamis, and after that Mr Hussain got back into bed.

116. The trial advocate anticipated that the complainant would say that Mr Hussain then commenced having penile/vaginal sexual intercourse with her. The complainant then said to Mr Khamis words to the effect of “Get your cousin off me”. The intercourse continued, and the complainant put her hand on the chest of Mr Hussain in an attempt to push him off. She said nothing directly to Mr Hussain.

117. She did say to Mr Khamis, according to the opening, loudly enough for both men to hear her, “Please get your cousin off me?” She also squeezed the hand of Mr Khamis “really hard” to alert him to what was being done by Mr Hussain.

118. The trial advocate then opened that the sexual intercourse came to an end, and the complainant simply lay there. After a few minutes had passed, Mr Hussain “got back on top” of the complainant, and penile/vaginal sexual intercourse occurred again.

119. The trial advocate then said the following:

“Now before he got off on top of her and stopped, that point there, that’s the first count in the indictment. So the first count in the indictment is the penile vaginal intercourse that [Mr Hussain] had with [the complainant]. So when I give you the indictment shortly that first count relates to that first incident of penile vaginal intercourse. The Crown alleges and I anticipate you will hear from [the complainant] that she says, [Mr Hussain], as I said got back on top of her after stopping for a short period. He commenced, he reinserted his penis in her vagina, commenced having sexual intercourse again. And [the complainant] pushed [Mr Hussain] in the chest with all of her strength. At that stage, she said get off me I am having a shower and that was when the sexual intercourse completed. Now that insertion of the penis in her vagina for that second time is the second count on the indictment.” [TT 48.37]

120. After that, the complainant got up from the bed and had a shower in the motel bathroom. Mr Khamis joined her. She returned to the bed with the encouragement of the two appellants.

121. After dawn had broken the next day, Mr Khamis sought to remove the underpants of the complainant. The complainant made it clear through words that she was not consenting. Mr Khamis nevertheless pushed her legs apart and placed his penis in her vagina. The complainant experienced pain. The penile/vaginal sexual intercourse came to an end when Mr Khamis got up from the bed and went to the bathroom.

120. The trial advocate said:

“That incident there with [Mr Khamis] relates to the third count on the indictment. So the first two counts relate to penile vaginal intercourse with [Mr Hussain]. And the third count relates to penile vaginal intercourse with Mr Khamis].” [TT 49.26]

123. The trial advocate went on to open that Mr Khamis returned from the bathroom into the room of the motel itself. He grabbed the complainant and wrapped his arms around her neck. He then inserted his penis into her anus. Again, she made it clear though her words that she did not consent to that penile/anal sexual intercourse.

124. The stay in the motel room concluded with a motel worker asking when the three guests would leave. They did leave, after which the complainant spoke to Ms Johnson and others.

125. Some time later, on 22 February 2013, the complainant ran into Mr Khamis, and they had a conversation about what had occurred at the motel.

126. After that, the jury was provided with copies of the indictment. The trial advocate said:

“So in relation to the first count on the indictment, the first count relates to penile/vagina [scil vaginal] intercourse by [Mr Hussain] as does the second count. The third count relates to penile/vaginal intercourse by [Mr Khamis] and the fourth count over the page relates to the penile/anal intercourse with [Mr Khamis].” [TT 50.46]

127. The trial advocate then went on to discuss various legal matters with the jury. They do not require elaboration for the purposes of either ground of appeal, except to say that he made it clear that the Crown proposed to prove knowledge of lack of consent on the part of the appellants either by way of actual knowledge; or by way of recklessness; or by way of the appellants having no reasonable grounds for a belief that the complainant was consenting, pursuant to s 61HA of the Crimes Act1900 (NSW).

128. Finally, with regard to each count, and the assertion that each of the appellants was in the company of the other, the trial advocate explained that the Crown case was based upon there having been a joint criminal enterprise between the two of them, even though underpinning each count was the allegation that only one of them had had sexual intercourse with the complainant on each occasion.

Evidence-in-chief of complainant

129. The complainant was the first witness called in the Crown case.

130. She spoke of meeting the two appellants on 31 January 2013 at a shopping centre, whilst in the company of her friend Ms Johnson. On that occasion, Mr Khamis gave the complainant and Ms Johnson a lift closer to their homes.

131. After that, she and Mr Khamis had online contact through Facebook over a period of several days. The details of those messages were explored, and it was clear that Mr Khamis had a romantic or sexual interest in the complainant. Later, a printout of the messages was tendered and became exhibit A in the Crown case.

132. The complainant spoke of arranging with Mr Khamis to meet again on 11 February 2013. She walked down to a local shopping centre. Mr Khamis arrived in his vehicle with Mr Hussain. The complainant asked why Mr Hussain was there, and Mr Khamis said to the complainant that she had spoken in the messages of the presence of Ms Johnson. The complainant denied that she had done so.

133. The three of them drove around the suburbs of Sydney. Eventually, a decision was made to book a motel room. The complainant gave evidence:

“I’m pretty sure it was [Mr Khamis] that asked if we wanted to go - if all of us would like to go back to a motel room.” [TT 91.3]

134. Whilst the two young men were in the reception area of the motel, the complainant waited outside and telephoned Ms Johnson.

135. The first room provided was found to be unsatisfactory, so the three of them obtained a different room. Again, the complainant was outside telephoning Ms Johnson.

136. The complainant entered the room to see the two young men lying on the bed. The television was on. Whilst the complainant was watching television, the two young men spoke in Arabic, a language that she did not understand. Mr Hussain said that he needed to obtain a charger for his mobile phone, and left. In the absence of Mr Hussain, consensual penile/vaginal sexual intercourse occurred between the complainant and Mr Khamis. That was preceded by the two of them kissing and touching each other, and the complainant removing her own jeans.

137. At one stage, Mr Khamis had penile/vaginal sexual intercourse with the complainant from behind. She said:

“But I didn’t want it that way because it was hurting my stomach but he proceeded to do it that way but I guess, yeah, I liked it so it was consensual.” [TT 97.10]

138. The sexual intercourse was interrupted by the sound of the vehicle of Mr Khamis from outside the motel room, indicating the return of Mr Hussain. Mr Hussain knocked on the door, and it was the complainant who told Mr Khamis to let him into the motel room. At that stage she was wearing her long singlet, her bra, and her underpants.

139. After that, the three of them were lying on the bed, with the complainant in the middle of the two young men. She felt the hand of Mr Hussain rubbing the top of her left thigh. That occurred for about five minutes. Later, she felt the bed “shaking a little bit”, and formed the opinion that Mr Hussain was masturbating. A few minutes after that she felt “a wet but warm sticky substance” on her leg, and inferred that Mr Hussain had ejaculated.

140. Mr Hussain got out of bed. When he returned she “could hear rustling of a packet and he was opening up a condom” [TT 98.30].

141. The complainant gave evidence that, at the time Mr Hussain was touching her leg, she had no conversation with Mr Hussain. She could not recall whether she had conversation with Mr Khamis at that stage about not wanting that to happen, or whether it was after she presumed that Mr Hussain had ejaculated that she had such a conversation with Mr Khamis.

142. When the trial advocate asked about Mr Hussain having touched her “private area”, the complainant said:

“Yeah I think, I think I missed out when everything in my memory is a bit all over the place, I’m trying to remember it the best I can.” [TT 98.49]

143. She then spoke of Mr Hussain “fingering me”, and expressed the thought that that was after he had ejaculated.

144. She spoke of having grabbed the hand of Mr Khamis, and pulling it down towards her vagina, in an effort to have Mr Khamis stop what Mr Hussain was doing. She said that Mr Khamis:

“…lifted up the blanket and looked and laughed at me and put the blanket back down and didn’t say anything.” [TT 99.20]

145. She said that she was also punching Mr Khamis on the arm and pinching him, and telling him “can you please tell your cousin to stop” [TT 99.22]. She gave evidence that that was said loudly enough for Mr Hussain to hear what she had said to Mr Khamis, “definitely loud enough”.

146. She gave evidence that she presumed that the rustling sound she heard was a condom, but she did not see it. She did see Mr Hussain with his head “down towards his penis area”, and presumed that he was manipulating a condom [TT 99.40 and following].

147. The complainant gave evidence that, after that, Mr Khamis asked Mr Hussain whether he was putting on a condom, and Mr Hussain replied in the affirmative. The complainant gave evidence that Mr Khamis replied “Don’t wear one it feels better with it off or without one” [TT 100.7].

148. Thereafter, the complainant gave evidence that Mr Hussain lay on top of her and inserted his penis into her vagina. At the time she was pinching and punching Mr Khamis, and asking him to get his cousin, Mr Hussain, off her. Her evidence was that Mr Khamis laughed and simply told her not to worry, and that she would like the experience [TT 100.17 and following].

149. Whilst Mr Hussain was having sexual intercourse with her, she was seeking to push him off by placing her hands to his chest. The more she did that, the more he weighed himself down onto her. She then called out to Mr Khamis, and asked him to return to the bed and lie down again. He did so, and she asked him again to remove his cousin. According to the complainant, Mr Khamis “didn’t care”.

150. Eventually, she pushed directly into the chest of Mr Hussain and said “Get off me, I’m going to go have a shower” [TT 100.38]. Mr Hussain complied with her request. The complainant got up from the bed, and entered the shower recess. Mr Khamis joined her and asked her what was wrong. She replied “You know what’s wrong with me”, and said “I told [sic] I didn’t want your cousin touching me”. Mr Khamis apologised [TT 101.4].

151. The complainant left the shower and, in the absence of towels, dried herself on a blanket. She sat in a walk-in cupboard in the room until she became dry. She dressed herself again in her singlet, underpants and bra. She went to the window and saw that dawn had broken, and people were up and about.

152. She began to feel nauseous and tired, and lay down on the bed again intending to sleep. Mr Khamis said “I’ll give you five minutes to sleep but then the party starts again, you know” [TT 101.22]. Nothing further occurred between the complainant and Mr Hussain, but Mr Khamis had penile/anal intercourse with her from behind whilst restraining her neck with his arm, thereby restricting her breathing. The anal intercourse was very painful to the complainant. (I interpolate that I well appreciate that the above evidence of the complainant resulted in a verdict of acquittal with regard to both appellants on count four.)

153. The trial advocate proceeded to show the complainant a number of photographs of the motel room in question; they were tendered without objection, and became exhibit B.

154. After the anal intercourse came to an end, the complainant was in pain, and told Mr Khamis that. She adopted the foetal position, and tried to sleep. After that, one of the motel employees came to the room and explained that, unless it was vacated, another night would have to be paid for.

155. The three young people left in the vehicle of Mr Khamis. According to the complainant, Mr Khamis repeatedly played a song on his car sound system that featured the lyrics “I’m going to get you wet, I’m going to make you sweat. This will be a night you won’t forget” [TT 110.7].

156. After a drive of less than 10 minutes, the complainant arrived at her family home. No one else was home. She became extremely upset. She sat for an hour in the shower recess crying. Eventually, she decided to kill herself, and wrote a suicide note. She drank a bottle of vodka, and slashed her wrists. She had a recollection of waking up in a hospital in a hysterical state and vomiting.

157. The suicide note was tendered and became exhibit C. Its contents verbatim are as follows:

“To my family –

Im so sorry for the pain Im about to put you all through, I do LOVE YOU ALL but I hate my life I cant do anything right, I just make mistakes after mistake I fuck up everything I want you all to be happy when I leave, like I said Im so sorry for all of this, I cannot do this anymore I honestly fell like Im dieing inside and no one can save me!

Goodbye Love you xoxo

it’ll all be alright!

Promise!!!”

158. It was whilst she was at the hospital that the complainant made an allegation of sexual assault to a nurse. Thereafter, the police became involved.

159. The complainant gave evidence that, some days later on 22 February 2013, she ran into Mr Khamis on the street in Liverpool. She had a conversation with him, the contents of which were admitted against Mr Khamis only.

160. In a nutshell, Mr Khamis told her that Ms Johnson had spoken to him, and spoken of the complainant having been hospitalised and having made an allegation of sexual assault. The complainant, having been told by the investigating detectives to deny that she had spoken to them, did so. Mr Khamis asserted that he did not rape the complainant. There was further conversation about family matters.

161. When someone drove past and sounded his horn and yelled out, the complainant asked Mr Khamis whether that person was Mr Hussain. He assured her that it was not, but also said “You really don’t like my cousin, do you?” She agreed that she did not, and when asked why by Mr Khamis she said:

“Because you know why. You know what happened that night and I told you I didn’t want your cousin touching me and you let him touch me.” [TT 116.12 and following]

162. According to the complainant, Mr Khamis complimented her on her appearance and then left.

163. Later in her evidence, she recalled that he had said “…I told you to tell him to fuck off”, and that it was her responsibility to have said something directly to Mr Hussain [TT 116.30].

Cross-examination of the complainant by counsel for Mr Hussain

164. In cross-examination, the complainant accepted that it was a short walk from the motel to the home at which she lived with her family.

165. She agreed that she made the arrangement to meet up on the evening in question because she wished to catch up with Mr Khamis. She also agreed that Mr Khamis was a little late arriving, and it was she who had telephoned him to see where he was.

166. Due to his lateness, it would have been somewhere about 9:30 PM and 9:40 PM when the meeting occurred.

167. The complainant agreed that the expectation of her parents was that she would be at home at least before midnight.

168. She was taken to the details of the driving around undertaken by the three of them.

169. As for the idea of going to the motel, in cross-examination she said:

“…I think at the time [Mr Hussain] was the one that was pushing on it.” [TT 131.4]

170. She agreed that at that stage Mr Hussain “misconstrued” her position as being that she wished to stay out all night, though whether she meant by that word he had done so accidentally or on purpose is not clear [TT 131.35].

171. She agreed that she had made a statement about the events of 11 February 2013 on 30 July 2013.

172. She agreed that, before the three of them booked into the motel, she was “waiting around” for Mr Khamis to withdraw money from an ATM [TT 133.15].

173. She agreed generally that the motel in question was not salubrious.

174. She agreed that, even at the time of moving to the second room, that was well past the time when her parents expected to be home, and yet she did not seek a lift home from Mr Khamis. She also agreed that the woman at the motel reception seemed perfectly approachable.

175. She agreed that, although she was late, she did not wish to go home or have a lift home because she “…just felt like staying out…” [TT139.15]

176. She agreed that she must have remained in the motel room for many hours, bearing in mind that the three of them left the room after dawn had broken, and after a motel worker had spoken to about them being billed for a further night.

177. She gave evidence that, in the morning and shortly before that departure, she had telephoned her mother and told her that she was coming home shortly. Her mother was upset with her.

178. When Mr Hussain left the room the evening before, he was gone for about an hour. She agreed that, on his return, it was she and not Mr Khamis who wished to let him in again.

179. She agreed that, when Mr Hussain was rubbing her thigh, she said nothing directly to him. She did say however that, when she asked Mr Khamis to get Mr Hussain to stop:

“It was out loud for all three of us to hear clearly.” [TT 155.50]

180. Her position was that she spoke in that way repeatedly.

181. With regard to Mr Hussain touching her body with his hand, when it was put to her that he did not digitally penetrate her vagina, the complainant said:

“No, I can’t recall if he pushed his fingers in or not.” [TT 158.42]

182. She denied that, when speaking of events at the motel to Ms Johnson at about 10.30 the following morning, she told Ms Johnson that she had merely whispered her complaints to Mr Khamis. She did agree that there was a phone call between herself and Ms Johnson at about that time [TT 159.9 and following].

183. Separately, she denied that she had in fact whispered to Mr Khamis, and said that she had been speaking loudly.

184. Counsel for Mr Hussain tendered a map that showed the short distance between the motel and the home of the complainant, and it became Exhibit 1.

185. Although she had spoken to Mr Khamis and not to Mr Hussain, the complainant agreed that there came a point during the sexual intercourse with Mr Hussain when she spoke to him directly by saying “Get off me, I’m going to have a shower”, and pushed hard against his chest [TT 163.19]. But she insisted that there had been a previous pushing by her, to which Mr Hussain responded by weighing himself down more firmly on her.

186. She agreed that it was possible that, when the sexual intercourse came to an end, Mr Hussain entered the bathroom of the motel room for a short period before she did.

187. Counsel for Mr Hussain put a number of propositions to the complainant [commencing at TT 145 of 16 April 2015]. Her responses were as follows.

188. Her position was that she was wearing her singlet at all times.

189. She agreed that there was no door between the motel room and the bathroom. She agreed that she used that bathroom to shower and urinate at least once each, and was in the bathroom a few times during the evening.

190. She maintained the position that she pushed Mr Hussain to the chest twice.

191. She had little memory of what she had done on the day in question before meeting Mr Khamis and Mr Hussain.

192. She agreed that during the evening she said nothing directly to Mr Hussain to indicate that she did not wish to have sexual contact with him.

193. She rejected the proposition that Mr Hussain did not masturbate and ejaculate on her leg.

194. As for the following morning, she agreed that it was a short drive from the motel to her home. She reiterated the details of what occurred after she arrived home.

195. She maintained the position that Mr Khamis asked where Ms Johnson was at the beginning of the evening, but the complainant told him that she had never been discussed as a possible attendee.

196. The complainant agreed that, when speaking to Ms Johnson from the motel, the complainant may have told her that she would ask Mr Khamis and Mr Hussain whether they would be able to pick Ms Johnson up and bring her there. She did not know whether she had actually asked them to do so. It was put to her that Ms Johnson told her that Ms Johnson was happy to come to the motel; that the complainant told Ms Johnson that the complainant would ask whether the appellants would pick Ms Johnson up; but that she never did ask them. She denied those propositions.

197. She rejected the proposition that she wished to be at the motel on her own, without Ms Johnson, and with Mr Khamis and Mr Hussain.

198. She agreed with counsel for Mr Hussain that, on separate occasions before the morning when she slashed her wrists and was taken to hospital, she had engaged in a number of other acts of self-harm. Two of them involved slashing her wrists. More generally, she had been in the habit of pinching and scratching herself, which gave her some form of psychological relief.

199. She was asked:

Q. Ma’am, when you went home would it be to fair you were very angry at yourself?

A. That’s correct, I was upset.

Q. And was part of the reason that you were angry at yourself, is part of that reason because you’d done something or done things which you felt you shouldn’t have done?

A. Yeah, it was regret of even going there; it was just I felt terrible for even making that dumb decision.” [TT 210.31 and following]

200. She agreed that, when she had been dropped at home, she kissed each of the appellants goodbye on the cheek.

Cross-examination of the complainant by counsel for Mr Khamis

201. In cross-examination by counsel for Mr Khamis, the complainant accepted that, after meeting Mr Khamis, she obtained his Facebook details from Ms Johnson.

202. She agreed that on 11 February 2013, before she left home, her mother spoke to her about not staying out late.

203. She agreed that she walked from her family home to the shopping centre where she had arranged to meet Mr Khamis.

458. In oral submissions, senior counsel for Mr Khamis emphasised the following.

459. Ms Johnson gave evidence of the complainant speaking of having whispered her lack of consent. Not only that, the complainant was inconsistent about whether she had said that to Ms Johnson or not.

460. The complainant said nothing directly to Mr Hussain indicating her lack of consent. On one reading, what she claimed to have said to Mr Khamis was not said until after Mr Hussain had commenced to have sexual intercourse with her. And all of that occurred after – according to what the complainant had told the police – she had observed Mr Hussain manipulating a condom.

461. Even allowing for the fact that the “objective” state of mind of Mr Hussain with regard to count one pursuant to s 61HA(3)(c) of the Crimes Act was left to the jury, still and all the verdict is unreasonable. That is because it could not be said, beyond reasonable doubt, that Mr Hussain had no reasonable grounds for believing that the the complainant consented to the sexual intercourse.

462. The seemingly suicidal distress of the complainant after the sexual intercourse was just as consistent with regret at having consented as it was with trauma at having been sexually assaulted; in that regard, the longstanding mental instability of the complainant needs to be borne in mind.

463. Speaking generally, there were many inconsistencies in the evidence of the complainant, not least with regard to whether or not digital/vaginal penetration occurred on the part of Mr Hussain, and whether or not the complainant had actually seen Mr Hussain manipulating the condom.

464. The complaint to the doctor was not consistent to the evidence of the complainant.

465. Finally, each of the applicants led impressive evidence of his good character.

Submissions of counsel for Mr Hussain

484. In written submissions, counsel for Mr Hussain invited attention to the following.

485. The trial advocate had opened on the expectation that the complainant would give evidence in support of counts two and three. Each of those was an allegation of sexual intercourse without consent against one appellant, with a further allegation against the other as being guilty by way of joint criminal enterprise. And yet the complainant had given no such evidence. That divergence between what the complainant was expected to say and what she actually did say plays a role in calling into question her reliability with regard to count one.

486. Speaking generally, counsel accepted that the mere fact that the complainant consented to spend the evening in a motel room near her home with two young men does not of itself suggest that she consented to a sexual encounter involving both of them. But seen in the light of other evidence – the lack of complaint to any person at the motel; the complainant remaining the whole night with both young men; the lack of complaint to Mr Hussain directly with regard to his sexual conduct preceding count 1; her lack of disagreement when Mr Hussain entered the bed; her lack of comment when Mr Hussain sought to place a condom on his penis; and the fact that, when the complainant was dropped off at home, she kissed each young man goodbye – at the least, all of that would lead Mr Hussain to form an honest and reasonable belief that the complainant agreed to have sexual intercourse with him. (I infer that this written submission is directed towards resistance to the proposition that Mr Hussain could safely have been found guilty on the basis of the “objective” culpability to be found in s 61HA(3)(c) of the Crimes Act.)

487. The complaint to the doctor of repeated penile/vaginal penetration by two men was not consistent with the evidence at trial of the complainant that there had been one assaultive episode of penile/vaginal intercourse with Mr Hussain, and one assaultive episode of penile/anal penetration with Mr Khamis.

488. Although the subsequent emotional state of the complainant could be said to be consistent with the trauma of having been sexually assaulted, it was equally consistent with a state of regret about having had consensual sexual intercourse with two young men.

489. Mr Hussain cooperated with police, and was a person of prior good character.

490. The kisses goodbye were not consistent with the young woman who had just been sexually assaulted by the two recipients thereof.

491. The denial on oath of Mr Hussain was not shown to be false.

492. In chief, the complainant spoke of digital/vaginal penetration committed by Mr Hussain. In cross-examination, she could not recall whether that had actually occurred.

493. Counsel submitted that the complainant was evasive in her evidence about the crucial conversation at 10:30 AM the following day, when she spoke to Ms Johnson about having whispered her protestations about the behaviour of Mr Hussain to Mr Khamis, in that the complainant gave evidence that she could not recall saying that.

494. The evidence of the complainant that she did not see a condom being manipulated by Mr Hussain was inconsistent with the contents of her statement to police, in which she had spoken of actually seeing Mr Hussain attempting to place a condom on his erect penis.

495. Finally, as a matter of practicality, the acquittal of both Mr Hussain and Mr Khamis on count four must mean that the jury had a reasonable doubt with regard to the evidence of the complainant in support of that count. That can play some role in the assessment by this Court of the evidence with regard to count one.

496. In oral submissions, counsel for Mr Hussain relied upon all that he had written, and further emphasised the following.

497. The evidence of the complainant as to her communication of her lack of consent to penile/vaginal intercourse with Mr Hussain was crucial to the conviction on count one. That evidence was directly contradicted by the evidence of Mr Hussain that he heard nothing to that effect. And the evidence for the complainant about what she had said and – just as importantly – how loudly she had said it, was disparate and unreliable.

Submissions for the Crown

498. Although separate written submissions were provided by the Crown with regard to each application, it is convenient to summarise each of them globally.

499. It was said that the age of the complainant is of great importance in assessing her acts and words. It is to be remembered that, on the evening in question, she had only just turned 17 years of age.

500. The complainant gave evidence over an extended period and was cross-examined by two defence counsel. The jury was in a very good position to assess her credibility.

501. Each of the applicants in his evidence tried to distance himself from the sexual activity of the other. It strains credulity that Mr Khamis, having been interrupted by the return of Mr Hussain, would have so little interest in the subsequent sexual contact of Mr Hussain with the complainant. The evidence of Mr Hussain about the behaviour of Mr Khamis to do with the sexual contact between Mr Hussain and the complainant also adversely affects the credibility of Mr Hussain.

502. The fact that the complainant consented to penile/vaginal sexual intercourse with Mr Khamis in the motel room says nothing about her consent to any intercourse with Mr Hussain.

503. The question of the attendance of Ms Johnson at the motel is answered by the text of the complainant to Ms Johnson to the effect that the distance was simply too far. That is consistent with the recollection of the complainant that one or other of the young men had told the complainant that the distance to pick up Ms Johnson was too far.

504. The history taken by the doctor from the complainant features only some direct quotes, must therefore be understood as a summary in the words of the doctor, and is reasonably consistent with the evidence of the complainant.

505. The fact that the complainant was content for Mr Hussain to re-enter the motel room hardly demonstrates that she was subsequently content to have sexual intercourse with him.

506. It may be accepted that the complainant did not protest verbally to Mr Hussain. But she did protest to Mr Khamis, a man with whom she had been intimate shortly beforehand, and to whom she patently felt closer than Mr Hussain.

507. The inconsistency about seeing the condom or not is neither here nor there, and the kind of inconsistency that one might expect from a young victim of sexual assault.

508. Even if, as Ms Johnson said the complainant had said, the complainant protested in a whisper to Mr Khamis, Mr Hussain – who was lying on top of the complainant – must surely have heard what she had said.

509. The discrepancy as to whether or not there had been digital/vaginal penetration by Mr Hussain is entirely to be expected in the circumstances.

510. It would have been perfectly natural for the complainant to be circumspect with her male friend Mr Miller, and for her suicide note not to be fulsome. Separately, wrongly blaming oneself and feeling misplaced regret is a common experience of victims of sexual assault.

511. It was accepted that kissing each man goodbye the following morning was one of the aspects of the Crown case that did not fit within the “classic picture” of sexual violation leading to the raising of a “hue and cry”. But, it was submitted, that conventional formulation is hardly the only way in which a victim of sexual assault may respond.

512. Finally, the acquittal of both appellants on count four pertaining to Mr Khamis having penile/anal intercourse with the complainant is of no moment in assessing the reliability of the evidence underpinning count one. Not only had the complainant previously engaged in consensual sexual intercourse with Mr Khamis, but also both Mr Khamis and Mr Hussain gave sworn evidence that, at the relevant time, Mr Hussain was asleep.

513. In oral submissions, the Crown prosecutor emphasised the following aspects.

514. Even if the complainant spoke in a whisper, Mr Hussain must have heard her protestations to Mr Khamis.

515. Separately, understandable and natural difficulties with memory on the part of the complainant do not render the conviction on ground one unsafe.

516. One may accept the oddity of the complainant making her protestations about the conduct of Mr Hussain to Mr Khamis. But one should recall her age; her closer familiarity with Mr Khamis; and the fact that she had been intimate with him shortly beforehand. It is not surprising that she would look to Mr Khamis to stop the conduct of his cousin.

517. It was accepted that the Crown case with regard to the complainant conveying to Mr Hussain that she did not consent to sexual intercourse with him was grounded upon the words said to Mr Khamis.

518. Finally, as for the evidence of Ms Johnson that the complainant had told her of having whispered her protestation the preceding evening, the Crown prosecutor submitted that that could have simply been a failing of memory, or a failure of understanding, on the part of Ms Johnson.

Determination

Legal analysis

519. M v The Queen (1994) 181 CLR 487; [1994] HCA 63, remains the touchstone in determining a ground such as this. It was referred to by the High Court of Australia with approval as recently as in Irwin v The Queen [2018] HCA 8.

520. I believe that it is useful to set out the entirety of what the plurality said about the proper approach to the resolution of such a ground in that seminal case (at 492-495).

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” (See Davies and Cody v The King (1937) 57 CLR 170, at 180), or “dangerous or unsafe” (See Ratten v The Queen (1974) 131 CLR at 515). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (See Raspor v The Queen (1958) 99 CLR 346 at 350-351; Plomp v. The Queen (1963) 110 CLR 234, at 246, 250). Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand” (See Hayes v The Queen (1973) 47 ALJR 603, at 604). But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King (1919) 27 CLR 13, at 23, Isaacs J. said:

“If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”

And as the Court observed in Davies and Cody v The King (1937) 57 CLR at 180, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

“not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No. 2] (1984) 153 CLR at 532; Knight v The Queen (1992) 175 CLR 495 at 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No. 2] (1984) 153 CLR at 621).

It was with those considerations in mind that some members of this Court (See Whitehorn v The Queen (1983) 152 CLR at 660, 687; Chamberlain v The Queen [No. 2] (1984) 153 CLR at 532-534) .have thought it necessary to qualify the statement by Barwick C.J. in Ratten v The Queen (1974) 131 CLR at 516 that: “It is the reasonable doubt in the mind of the court which is the operative factor.” Barwick C.J. went on to say:

“It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.”

The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.

But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No. 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444.). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

521. In short, I have applied the following propositions.

522. I am determining a question of fact, not law.

523. I am determining whether it was open on the evidence to the jury to return a verdict of guilty on count one.

524. In determining that question, I am to bear in mind the advantage of the jury in seeing and hearing the evidence given in the witness box.

525. A reasonable doubt experienced by me would be, in most cases, be a reasonable doubt that the jury ought also to have experienced.

526. The exception to the above proposition is that, if I believe that the advantage of the jury in seeing and hearing the evidence given is capable of resolving that reasonable doubt experienced by me, then I may conclude that no miscarriage of justice occurred.

Evidential analysis

527. Applying those propositions to the evidence in this appeal, in my opinion the determination of this ground is very finely balanced. My mind has wavered many times since judgment was reserved.

528. The following factors argue in support of the proposition that it was open to the jury to return a verdict of guilty on count one.

529. First, the constitutional role of the jury as the tribunal of fact with regard to serious crimes should be respected, and an appellate court should be slow to interfere with that role by substituting its own view of evidence for that of the members of the jury.

530. Secondly, in any proceedings, a transcript of evidence fails to capture such aspects of the evidence of a witness as facial expression, gesticulation, tone of voice, volume of voice, speed of response, any pauses or hesitations, changes in mood, body language generally, and countless other factors. My own experience, both as counsel and judge, is that a transcript will often very largely fail to reflect the atmosphere that I had experienced to have prevailed in court. Evidence read subsequently in a transcript that seems acceptable will often be recalled to have seemed completely unacceptable at the time when it was given, and sometimes vice versa.

527. Thirdly, those deficits in determining the quality of evidence founded upon a transcript are surely more pronounced in the case of an allegation of sexual assault in which starkly contrasting versions of events are given by different persons on oath.

528. Fourthly, it is to be recalled that the complainant was still a child when the events in question took place. Her actions and reactions are not to be judged by the standards of an adult.

529. Fifthly, great care needs to be taken not to impose stereotypical expectations about how a victim of sexual assault is “supposed” or “expected” to behave.

530. Sixthly, merely because a person suffers from a psychological or psychiatric condition does not mean that that person is not to be believed when he or she complains of having been sexually assaulted.

531. Seventhly, complete consistency in the recounting of the details of an alleged offence, especially one allegedly committed many months before the trial, is not to be expected; indeed, it would be suspicious.

532. Eighthly, as my detailed summaries above demonstrate, the evidence on oath of the two appellants, although consisting of denials, may not have assisted their cases much, if at all.

533. To expand on that statement, the position of Mr Khamis that he did not appreciate that Mr Hussain and the complainant were having sexual intercourse, and that he was merely on his phone at the time, strains credulity. The conclusion of his evidence-in-chief – when he would not give a clear answer to his own counsel about his belief that the complainant was consenting – hardly assisted. The transcript suggests that he sought to evade the real position about contact between himself and his friends and the motel. His evidence was unclear about who it was who actually proposed booking the room.

534. The suggestion that the three of them went to the motel without some kind of intimate contact in mind strains credulity. So does the position that, even if the complainant had not been with them, the two young men may have booked into the motel together in any event. And so does the proposition that, when Mr Hussain left the room, Mr Khamis did not know whether he would return at all.

535. His flippant answer about the sound of something being unwrapped possibly being a chocolate would hardly have endeared him to the jury.

536. The suggestion that there was otherwise complete silence in the room borders on the bizarre. So does the suggestion that there may have been a whispered conversation preceding the sexual intercourse between the complainant and Mr Hussain that Mr Khamis did not hear. The explanation of the lyrics of the song playing in the car the following morning is founded upon coincidence.

537. The evidence of Mr Hussain had similar negative attributes. His lack of facility in English was open to question. Even in chief, he seemed to prevaricate about whether or not he was familiar with the motel in question. The expectation that Ms Johnson would be present seemed ill-founded. His evidence that the complainant placed the hand of Mr Khamis on the hand of Mr Hussain when the latter was at the genitals of the complainant was not supported by the evidence of Mr Khamis.

538. In light of the fact that Mr Hussain absented himself from the company of Mr Khamis and the complainant on two occasions, one may doubt the truthfulness of his explanations based upon a spicy pizza and a phone charger.

539. The admitted lack of intimate response to his actions of any kind on the part of the complainant did not help the case for Mr Hussain. His evidence on oath that he had “not been paying attention” to the evidence of Mr Khamis in the joint trial about conversation about the condom would not have endeared Mr Hussain to the jury. Nor would the proposition that he never thought to ask the complainant why she brought the consensual sexual intercourse between the two of them to an abrupt end.

540. Ninthly, the jury verdict could be understood as simply being a reflection of the proposition that, although the complainant was content to consent to sexual intercourse with Mr Khamis, but she was not content to consent to sexual intercourse with Mr Hussain. There is nothing inherently unlikely about that simple proposition.

541. In my opinion, the significant countervailing features are as follows. I have stated them in generally ascending order of importance to my determination.

542. First, except in unusual circumstances, circumspection about, or even rejection of, exculpatory evidence does not constitute inculpatory evidence.

543. Secondly, the courteous and seemingly friendly behaviour of the complainant the following morning towards the two young men who, on the Crown case, had sexually assaulted her the evening before is, even making due allowance for the variability of human conduct, perhaps surprising.

544. Thirdly, the distress of the complainant that developed thereafter may appear more consistent with the trauma of sexual assault than mere regret about consensual sexual activity. But the otherwise fragile psychological condition of the complainant generally needs to be borne in mind in assessing the probative value of her level of distress.

545. Fourthly, one can infer from the divergences between the opening of the trial advocate and the evidence actually given by the complainant leading to the two verdicts by direction that, at the least, she had made more extensive allegations before the trial than she did in her evidence.

546. Fifthly, the history given to the doctor was seemingly incomplete on the Crown case, even bearing in mind that it was not taken down verbatim.

547. Sixthly, the two appellants were persons of good character.

548. Seventhly, the complainant spoke to her male friend the following morning of having “done something wrong” and having “slept with two guys”, as opposed to having been sexually assaulted by one of them with the connivance of the other.

549. Eighthly, the suicide note was in similar terms, in that it spoke of “mistakes” of the complainant, not things having been done wrongfully to her.

550. Ninthly, the first explicit complaint of sexual assault was after the complainant had become grossly intoxicated, attempted to commit suicide, become hysterical, and been hospitalised.

551. Tenthly, even giving due weight to the age and psychological problems of the complainant, the fact that she spent many hours in the motel room without attempting to depart, or complain to any person, and indeed having cut herself off from phone contact with her mother, is significant. And it is particularly significant with regard to the period after the sexual intercourse between the complainant and Mr Hussain came to an end, bearing in mind that on the Crown case she had not consented to it, and had made that lack of consent perfectly clear to both appellants.

552. Eleventhly, the proposition that, whilst being sexually assaulted by Mr Hussain, the complainant said nothing whatsoever to him directly, but relied upon him hearing her expression of her lack of consent to Mr Khamis, is very odd. That is especially so bearing in mind that she did not give evidence of being afraid of Mr Hussain, and indeed her position was that she was content to push him to the chest more than once.

553. Twelfthly and finally, the evidence of Ms Johnson that, the following morning, the complainant told her of having expressed her lack of consent the evening before merely by whispering to Mr Khamis is highly significant. As I have said, it was accepted at the hearing before us that that was the centrepiece of the communication of lack of consent to Mr Hussain. Ms Johnson was not cross-examined by the trial advocate pursuant to s 38 of the Evidence Act 1995 (NSW) in an attempt to undermine her evidence about the volume of the protestation. Not only is a suggestion of whispering strange indeed in the circumstances, it also raises the significant possibility that, if true, Mr Hussain simply did not hear the protestation.

554. Seeking to weigh up all of those factors, and applying the test in M v the Queen, I experience a reasonable doubt about proof of the fact that, when he had sexual intercourse with the complainant, Mr Hussain knew that she was not consenting. And I should indicate that I have come to regard my own wavering assessment of the matter as inherently indicating that I experience a reasonable doubt.

555. I have also ultimately come to that position, bearing in mind that the Crown relied upon the extended, objective form of the necessary knowledge. To be clear, I experience a reasonable doubt about whether Mr Hussain had “no reasonable grounds for believing that the other person consents to the sexual intercourse” (see s 61HA(3)(c) of the Crimes Act), based largely upon my concern about the absence of clear proof as to what actually happened in the motel room.

556. I have separately considered whether that reasonable doubt of mine can be resolved against the appellants, in light of the unquestionable advantage that the jury enjoyed in assessing questions of credibility. But in light of the objective aspects of the evidence that I have set out above, I have come to the view that, even making due allowance for that significant advantage, my reasonable doubt is not resolved, and the verdict should not be permitted to stand against Mr Hussain.

557. It follows, of course, that if no offence has been proven against Mr Hussain, then Mr Khamis, whose criminal liability was established by way of a joint criminal enterprise in the acts of Mr Hussain, must be acquitted as well.

Conclusion

562. In short, in my opinion, ground one should not succeed, but ground two should be upheld with regard to both appellants.

Proposed orders

563. I propose the following orders:

1. An extension of time is granted to Rafal Raad Khamis to prosecute his appeal.

2. Leave to appeal against conviction is granted to Rafal Raad Khamis.

3. The appeal against conviction of Rafal Raad Khamis is upheld.

4. The conviction of Rafal Raad Khamis is quashed, and a verdict of acquittal entered.

5. Leave to appeal is granted to Ather Hussain.

6. The appeal against conviction of Ather Hussain is upheld.

7. The conviction of Ather Hussain is quashed, and a verdict of acquittal entered.

**********

Amendments

02 July 2018 - Paragraph 29 line 3 (punctuation change)

Decision last updated: 02 July 2018