Kim v R

Case •

[2020] NSWCCA 288

•

11 November 2020

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Kim v R [2020] NSWCCA 288
Hearing dates: 7 October 2020
Date of orders: 11 November 2020
Decision date: 11 November 2020
Before: Payne JA at [1];
Davies J at [80];
Garling J at [84].
Decision:

(1)   Application for leave to appeal granted;

(2)   Appeal dismissed save for order (3) below, which is necessary by reason of the applicant being granted appeal bail;

(3)   Set aside the sentence imposed in the District Court on 9 April 2020 and in lieu thereof impose the following sentence:

(a)   On count 3 in the indictment the applicant is sentenced to 12 months imprisonment commencing on 4 July 2020;

(b)   On count 1 in the indictment, the applicant is sentenced to a non-parole period of 4 years to date from 4 January 2021 with an additional term of 2 years expiring on 3 January 2027. The offender is first eligible for parole on 3 January 2025;

(4)   The applicant is to be taken into custody today.

Catchwords:

APPEALS – jury verdict – conviction appeal – where applicant convicted of one count of sexual intercourse without consent and one count of assault but acquitted on one count of sexual intercourse without consent – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence

Legislation Cited:

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

Cases Cited:

AH v R [2019] NSWCCA 152

Jafary v R [2018] NSWCCA 243

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

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

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

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

ML v R [2015] NSWCCA 27

Pellv The Queen [2020] HCA 12; (2020) 94 ALJR 394

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v Stone (Court of Criminal Appeal (England and Wales), 13 December 1954, unrep)

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

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

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

Category:Principal judgment
Parties: Stuart Kim (Applicant)
Crown (Respondent)
Representation:

Counsel:
A Bellanto QC with T Bicanic (Applicant)
B Baker (Respondent)

Solicitors:
Kim & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/218769
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) there is a non-publication order of information or material that identifies or is likely to lead to the identification of the complainant.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Crime
Date of Decision:
06 February 2020
Before:
Conlon SC A/DCJ
File Number(s):
2018/218769

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Kim, the applicant, stood trial in 2020 for allegedly sexually assaulting and assaulting his ex-girlfriend over one night in 2018. The jury returned guilty verdicts for one count of sexual intercourse without consent and one count of common assault. The applicant was acquitted of a second count of sexual intercourse without consent.

The applicant sought leave to appeal on two grounds:

  1. the verdicts of guilty in relation to counts 1 and 3 were inconsistent with the verdict of not guilty in relation to count 2;

  2. the verdicts of guilty in relation to counts 1 and 3 were unreasonable, and could not be supported.

The Court (per Payne JA, Davies J and Garling J agreeing) held, granting leave to appeal but dismissing the appeal:

In relation to Ground 1

1. The test to be applied when verdicts are said to be inconsistent is one of logic and reasonableness. The applicant must satisfy the court that the two verdicts cannot stand together, meaning that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion: at [26].

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

2. In determining whether convictions are unreasonable, the court must inquire whether there exists any rational explanation for the acquittals: at [27]-[29].

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151; Jafary v R [2018] NSWCCA 243 applied.

3. Any assumption that acquittals on some counts and convictions on others necessarily denote rejection of a complainant’s credibility or reliability is incorrect. Differential verdicts may provide the basis for confidence that the jury has done what it has been instructed to do, which is to consider each count separately and reach a verdict on that count, on the evidence relevant to that count: at [30]-[36].

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 considered

AH v R [2019] NSWCCA 152; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 applied.

4. It was a rational and open conclusion to draw that the complainant’s evidence that she did not in fact consent to anal or vaginal intercourse should be accepted beyond reasonable doubt, but there was nevertheless still a reasonable possibility that the applicant did not know that the complainant was not consenting to vaginal intercourse: at [37], [40]-[50].

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; ML v R [2015] NSWCCA 27 applied.

In relation to Ground 2

5. The High Court has made it clear that “imperfections of evidence”, including deficiencies in recollection, are “not uncommon in most trials”, and that juries, properly instructed on the law are usually well able to evaluate conflicts and imperfections of evidence: at [57].

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

6. The jury’s advantage is not limited to its capacity to see and hear the witnesses give their evidence. The jury is “the constitutional tribunal for deciding issues of fact”. The assessment of the credibility and reliability of the complainant was a matter within the province of the jury: at [58]-[59].

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

7. Having reviewed all of the evidence, this was not a case where the complainant’s evidence contained “discrepancies, or display[ed] inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt”. Nor was the complainant’s evidence improbable or inconsistent with other unchallenged evidence. Neither the verdict of acquittal on count 2 or any of the matters raised by the applicant in support of his claim that the verdicts were unreasonable are sufficient to satisfy the Court that the jury must have had a doubt about the applicant’s guilt: at [60]-[79].

Pellv The Queen [2020] HCA 12; (2020) 94 ALJR 394 applied.

Judgment

  1. PAYNE JA: In January and February 2020, the applicant was tried before a jury presided over by his Honour Acting Judge Conlon SC in respect of two counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (NSW) (the circumstance of aggravation being a reckless infliction of actual bodily harm) and one count of common assault contrary to s 61 of the Crimes Act. During his summing up, the trial judge directed the jury to return verdicts of not guilty to counts 1 and 2 as framed, leaving the jury to consider the statutory alternative of sexual intercourse without consent (s 61I of the Crimes Act) in respect of those counts.

  2. On 6 February 2020, the jury found the applicant guilty of the alternative to count 1 (sexual intercourse without consent; anal intercourse) and count 3 (common assault). The jury found the applicant not guilty of the statutory alternative to count 2 (sexual intercourse without consent; vaginal intercourse).

  3. On 9 April 2020, the applicant was sentenced to imprisonment for 6 years with a non­parole period of 4 years in respect of count 1. The applicant was sentenced to imprisonment for a fixed term of 12 months in respect of count 3. That sentence was backdated to commence 4 months and 6 days earlier, to take account of pre-sentence custody. The applicant was granted appeal bail on 9 April 2020.

Relevant facts

  1. The offences occurred on 14 July 2018. At that time, the complainant was an international student studying Art and Design at the University of New South Wales and was 24 years old. The complainant had been in a relationship with the applicant for about eight months. That relationship had ended shortly before 14 July 2018. This was not the first time that the relationship had ended.

  2. On 14 July 2018, the applicant texted the complainant and asked her to go to the “Star Bar” with him. In the texts, the applicant asserted that the Star Bar was where the complainant had “made a regret[t]able and childish action”. This assertion apparently referred to an occasion when the complainant had played pool with an ex-boyfriend at the Star Bar. The applicant had become angry after seeing a photo of this event. The complainant gave evidence that she agreed to meet the applicant at the Star Bar after the applicant sent her threatening electronic messages about her university studies and consequent visa status.

  3. The subject of those threatening emails was assistance the applicant had given the complainant in the past for the purpose of completing her university assignments. The complainant’s written and spoken English language ability is poor. The applicant’s written and spoken English language ability is better than the complainant’s. The applicant threatened to tell the University that he had written some or all of the complainant’s assignments. The complainant gave evidence that this was not the first time that the applicant had threatened her in this way.

  4. The complainant and the applicant argued at the Star Bar. The complainant and the applicant left the Star Bar together and walked around the city. Whilst walking, they argued again and the applicant again threatened to send an email to the University about his having assisted the complainant with her assignments. Having viewed the CCTV footage in evidence at the trial, as the applicant invited this Court to do, it is apparent that there was a degree of intimacy between the complainant and the applicant at the Star Bar, and the applicant’s arm appeared to be around the complainant for some of the time as they walked to her apartment.

  5. The complainant gave evidence that the applicant’s explanation for his making repeated threats to the complainant was that “[h]e wanted [the complainant] to be with him” and for her to “acknowledge [her] mistake”. The complainant gave evidence that she did not want to be with the applicant and told him so. Eventually, the complainant agreed that the applicant could come to her apartment with her. The complainant gave evidence that she agreed to the applicant’s request because the applicant was threatening her about her degree and visa status.

  6. The Crown case was that upon reaching the apartment the applicant proceeded to the complainant’s bedroom and took off his clothes and took off the complainant’s clothes, leaving the complainant dressed in her underwear. The complainant lay down on the bed on her left­hand side, facing the wall. The applicant lay down behind her. She could feel his penis on her back. The applicant tried to take off his own underwear and then tried to take off the complainant’s underwear. When he tried to take off her underwear the complainant said “Don’t do sex like that”. The complainant was still facing away from the applicant, facing the wall.

  7. The applicant stopped for a few seconds, and then started trying to take off the complainant’s underwear again. She said “stop” again. The applicant did not stop. The applicant entered the complainant’s anus with his penis. The complainant felt pain and used her right hand to try to push him away, saying “stop”. The applicant pushed her hand away and inserted his penis into her anus again. The complainant felt pain. She curled her body up. The applicant moved his penis in and out. Whilst he was doing this the complainant said “stop” a number of times. She also said “it’s pain”. These events were the subject of count 1 in the indictment, sexual intercourse without consent. The applicant was found guilty by the jury.

  8. After the applicant removed his penis from the complainant’s anus, the complainant and the applicant started arguing again. There is no precise evidence about how long this argument lasted. The applicant said that the complainant did not love him and that she had betrayed him. When the argument came to an end, the applicant entered the complainant’s vagina with his penis. The complainant gave evidence that she “did not resist”, as she felt hopeless, scared and disappointed. The applicant moved his penis inwards and outwards. At some point the complainant said to him “It’s dangerous. You didn’t use condom. You should stop; it’s dangerous. You didn’t use condom”. The applicant did not immediately stop nor say anything in response, but eventually did so. These events were the subject of count 2 in the indictment, sexual intercourse without consent. The applicant was found not guilty by the jury.

  9. The applicant and the complainant started to argue again and the applicant became angry. The applicant shouted at the complainant, pulled her hair and pushed her head against the bed seven or eight times. The applicant then choked the complainant, squeezing her neck with both hands. The complainant could not breathe. These events were the subject of count 3 in the indictment, common assault. The applicant was found guilty by the jury.

  10. The complainant gave evidence that after the applicant let go of the complainant, he made her kneel down in front of him and apologise. The complainant complied. She explained in her evidence that she just wanted to “finish this whole thing, so I just did whatever he asked me to.”

  11. The following day, which was Sunday, the complainant went to the house of her friend, Mr M. The complainant was doing some modelling for Mr M. Mr M saw bruising on the complainant’s back and neck and asked who had caused the bruising. The complainant told Mr M that the applicant “did it”. Mr M took photos of the bruising which became Exhibit B at the trial.

  12. The complainant went to the police. As precisely what the complainant said in her complaint to the police and what the police recorded was controversial at the trial, it will be addressed in a little detail when dealing with ground 1 of the appeal.

  13. The applicant gave evidence at the trial that he had vaginal and anal intercourse with the complainant on the evening in question, but maintained that both were consensual. He denied that he pushed the complainant’s head or choked her.

  14. He was shown the text messages between himself and the complainant. The applicant denied that the complainant was ever on her knees. He said that the complainant was in the process of getting on her knees and that he had tried to stop her. He said that he understood the word “insult” in the complainant’s text message to mean that the complainant felt insulted by what he had said. He said that when he texted the complainant at 2:35am on Sunday “Are you going to tell your friends?” he was asking whether she was going to tell her friends “that I kneeled in front of [her] whilst crying, begging [her] to tell me something that [she] was keeping from me”.

  15. In cross-examination, the applicant agreed that he had mentioned the complainant’s studies to her as early as May 2018. He agreed that “in retrospect” that was a threat. The applicant agreed that he made threats that were “in effect designed to get [the complainant] to comply with [his] wishes”.

Notice of appeal

  1. On 29 June, 2020, the applicant filed a notice containing two grounds seeking leave to appeal:

  1. The verdicts of guilty in relation to counts 1 and 3 are inconsistent with the verdict of not guilty in relation to count 2;

  2. The verdicts of guilty in relation to counts 1 and 3 are unreasonable, and cannot be supported, having regard to the evidence and the acquittal on count 2.

Submissions

  1. The crux of the applicant’s submissions in relation to ground 1 was that:

“… it is incomprehensible that the first act of penile/anal intercourse would be knowingly non­consensual (count 1), whilst there may be sufficient doubt in relation to the penile/vaginal intercourse (count 2), but nevertheless a further acceptance of an assault (count 3).”

  1. The applicant submitted that, as the jury accepted the elements necessary to prove count 1, there was nothing in the evidence that would explain the acquittal on count 2, other than a significant doubt about the credibility of the complainant. The applicant submitted that there was nothing in the evidence that would safely corroborate the complainant in relation to counts 1 and 3, having regard to the comments by Simpson J in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [131]-[132] and the following:

  1. the explanation from the police in relation to the penile/vaginal complaint;

  2. the equivocal nature of the subsequent complaint to Mr M;

  3. the evidence of Dr Woods being incapable of explaining the acquittal;

  4. the DNA evidence being incapable of explaining the acquittal;

  5. no complaint of any sexual mistreatment in the communications between the complainant and applicant in the electronic messages in Exhibit G;

  6. the final question in examination in chief of the complainant, “Did you want to have sex with him that night?”, to which the complainant replied, “I don’t want to have sex with him”, which was an answer that applied to both the penile/anal and penile/vaginal sex.

  1. The applicant submitted that it was not in issue at the trial that the applicant and complainant had engaged in anal sex and vaginal sex on the night of 14 July 2018. It was submitted that the acquittal on count 2 was explicable on the basis that the jury:

  1. believed the complainant consented;

  2. believed that, although the complainant did not consent, the Crown could not prove beyond reasonable doubt that the applicant knew or was reckless she was not consenting; or

  3. were not satisfied beyond reasonable doubt of the complainant’s version that the applicant and complainant engaged in non-consensual vaginal sex.

  1. As to the first and second of those possibilities, the applicant submitted that because the jury had accepted beyond reasonable doubt the elements and essential factual matters in relation to count 1, it was not reasonably open to the jury to come to the view that either the complainant consented to vaginal sex or that the applicant did not know the complainant was not consenting. The applicant pointed to the complainant’s evidence that she said “Stop”, “it’s dangerous“ and “you didn't use condom”, and that following these protestations the applicant “continued moving” his penis in and out of the complainant’s vagina. In those circumstances, the applicant submitted that it was not a rational explanation for the jury’s verdict in count 2 to suggest that the complainant consented, or that the applicant did not know that the complainant was not consenting. In relation to the third scenario, the applicant submitted that the fact of vaginal sex was not in issue.

  2. In relation to ground 2, in addition to the acquittal on count 2 in the indictment, the applicant referred to 12 matters which it was submitted, considered together, should lead this Court to conclude that the verdicts of guilty were unreasonable and should be set aside.

  3. In submissions in reply, the applicant said about ground 1 that it was an error to “compartmentalise” the evidence in relation to the various counts in the indictment. The offences occurred “during the same continuous episode and within a very short timeframe”. It was submitted that there was “no possibility at all that the jury would have formed the view that it was possible that the applicant did not know the complainant was not consenting”.

Consideration – ground 1

Legal principles – inconsistent verdicts

  1. The legal test to be applied to the applicant’s ground 1 is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. In MacKenzie (at 366), Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (Court of Criminal Appeal (England and Wales), 13 December 1954, unrep). In order to succeed on this ground, the applicant:

“… must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”

  1. The approach stated by Simpson J in TK at [128] (McClellan CJ at CL and Latham J agreeing) is the correct one to adopt:

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

  1. Her Honour went on (at [130]) to stress that:

“[before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility.” (Emphasis in original.)

  1. That approach remains the correct approach: Jafary v R [2018] NSWCCA 243 at [37].

  2. In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 the appellant was charged with three offences of sexual intercourse with a female child. The jury convicted on two of the three counts, and acquitted on the other. By majority the High Court set aside the convictions. Their Honours found that the acquittal damaged the credibility of the complainant with respect to all counts in the indictment. They considered (at 453) that:

“Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count.”

  1. In AH v R [2019] NSWCCA 152, Simpson AJA explained (at [56]) that it “seems that too much has been read into the judgment in Jones.”

  2. In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Spigelman CJ undertook an exhaustive review of decisions of this and other appellate courts since Jones, and concluded:

“[125]   This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant’s uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances. …”

  1. Wood CJ at CL agreed. After also undertaking a consideration of cases in which Jones had been applied, his Honour said:

“[212]   So understood, I do not regard Jones as an authority for the presumption previously mentioned. It does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness. It leaves unimpaired the traditional instruction given to juries that they are not obliged to wholly accept or to wholly reject what a witness says, but are free to accept part and to reject part of his or her account – an instruction accepted as perfectly appropriate, if not one that should be given, in KBT v The Queen (1997) 191 CLR 417 at 424, and in KRM v The Queen (2001) 75 ALJR 550 at 558 [36] …”

  1. Also relevant to this ground is the judgment of McHugh J in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 where his Honour explained:

“[36]   It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it …. The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside [cf Jones v The Queen (1997) 191 CLR 439].”

  1. Any assumption that acquittals on some counts and convictions on others necessarily denotes rejection of a complainant’s credibility or reliability was rejected in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. In MFA, 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.” Echoing McHugh J in KRM, their Honours explained that it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count, and will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.

  2. I agree with the conclusion of Simpson AJA in AH that:

“[62]   … differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.”

  1. This Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

Application of principles in this case

  1. The applicant contends that the jury’s verdicts are inconsistent because the jury convicted the applicant of counts 1 and 3, which respectively alleged sexual intercourse without consent (anal penetration) and that the applicant assaulted the complainant, but acquitted the applicant of count 2, sexual intercourse without consent (vaginal penetration).

  2. As I have explained, inconsistency is not established simply because the jury recorded different verdicts in respect of counts that each relied upon the uncorroborated evidence of the complainant. Rather, it is only where the verdicts “cannot stand together” or where “no reasonable jury who applied their minds properly to the facts in the case could have arrived at the conclusion” that a jury’s verdict will be set aside as inconsistent: MacKenzie at 366.

  3. In the present case, I have concluded that a reasonable jury who applied their minds properly to the case could have found the applicant guilty of counts 1 and 3, but not guilty of count 2. The trial judge instructed the jury to consider each count individually and to consider whether the elements were made out in respect of each individual count. I reject the applicant’s submission that this is inappropriately to “compartmentalise” the evidence. The critical element here was the Crown’s burden of proving beyond reasonable doubt the applicant’s knowledge, or recklessness, that the complainant was not consenting to anal (count 1) or vaginal (count 2) sex.

  4. Contrary to the applicant’s submissions, the jury could properly have concluded that the evidence about counts 1 and 2 led to different verdicts. That is because, on all the evidence, the jury could have concluded that the Crown had not established beyond reasonable doubt that the applicant knew that the complainant was not consenting to vaginal penetration or was reckless about that matter. That is, it was open to the jury to consider the complainant to be a credible and reliable witness, but to give the applicant the benefit of the doubt in respect of the count alleging vaginal penetration. It was a rational and open conclusion to draw that the complainant’s evidence that she did not in fact consent to anal or vaginal intercourse should be accepted beyond reasonable doubt, but there was nevertheless still a reasonable possibility that the applicant did not know that the complainant was not consenting to vaginal intercourse.

  5. The evidence in relation to count 1 established clearly that the complainant was physically and verbally resisting anal intercourse. By contrast, the complainant said in relation to count 2, the subsequent vaginal intercourse, that she “did not resist” as she felt very hopeless, scared and disappointed.

  6. The complainant’s evidence was that when the applicant was behind the complainant and tried to take off her underwear she responded, “Don’t do sex like that”. When he began penetrating her anally she physically pushed the applicant away. She also gave evidence that during the anal intercourse she said “stop” five to six times and said “it’s pain”. The jury concluded that the applicant knew, or was reckless about whether, the complainant was not consenting to anal sex.

  7. After the applicant removed his penis from the complainant’s anus, the complainant and the applicant started arguing again. There is no precise evidence about how long this argument lasted. The applicant said that the complainant did not love him and that she had betrayed him. When the argument came to an end, the applicant entered the complainant’s vagina with his penis. I do not accept that it is an accurate characterisation of the evidence that the anal and vaginal intercourse occurred “during the same continuous episode and within a very short timeframe”. That description may perhaps be consistent with the applicant’s account of the events but is inconsistent with the complainant’s account.

  8. It was open to the jury to have reasoned, in view of the complainant’s comparative lack of resistance to vaginal intercourse, that the applicant did not know and was not reckless about whether the complainant was not consenting to vaginal intercourse. In this respect, another potentially relevant factor was that while the applicant was penetrating her vagina, the complainant told the applicant that he should stop because he was not using a condom. Although not immediately, the applicant did stop, without ejaculating. The complainant could not remember how long it was after she said “stop” that the applicant withdrew.

  9. Count 3, which constituted an offence of common assault, occurred after the complainant and the applicant commenced arguing again after the vaginal intercourse. The complainant gave evidence that the applicant had grabbed her hair, and pushed her head against the bed in the course of this argument. She also gave evidence that the applicant choked her, squeezing her neck with both hands, during which she could not breathe. No question about the applicant’s knowledge of consent could reasonably arise in this context. The complainant’s evidence of the assault was consistent with the bruises on her body, however Dr Woods’ evidence was that the bruising was not definitive. It was open to the jury to reject the applicant’s evidence that these bruises were caused by consensual conduct.

  10. There is a second issue. A great deal of time and energy was spent at the trial by Senior Counsel for the applicant exploring the evidence given about the applicant’s initial complaint to the investigating police. Neither of the initial investigating officers recorded the complainant as having made any allegation about vaginal intercourse in her initial complaint. Rather, the complainant’s initial allegation recorded by both officers was limited to anal intercourse. Whilst both officers were adamant that the complainant did in fact complain about both vaginal and anal intercourse, the absence of any written reference to vaginal intercourse in those early notes may have been considered by the jury to be an important difference between the two allegations.

  11. Whilst Senior Counsel for the applicant claimed on appeal that this was not an issue before the jury, much was made by Senior Counsel for the applicant in his closing address to the jury about differences in the complainant’s account of the events, and how her description of the sexual assaults had been recorded by the police. This could rationally have been understood by the jury as raising an issue about whether the applicant knew that the complainant was not consenting to vaginal sex.

  12. It may be, as Senior Counsel submitted in this Court, that in his closing address he was intending simply to attack the complainant’s credibility and her evidence about consent. But the jury may not have understood his address that way. I have concluded that this issue, raised by the applicant, identified another basis upon which the jury may rationally have differentiated between the two counts. Whilst, ultimately, Senior Counsel for the applicant framed the critical question to the jury as an “all or nothing” proposition, the jury were not bound to approach the counts this way, and it was open to them to approach each count separately, as they were instructed to do by the trial judge.

  13. I have concluded that the jury’s verdict of not guilty in respect of count 2 does not demonstrate that the jury found the complainant to be an untruthful or unreliable witness. The verdicts were consistent with the jury having adopted “a cautious approach to the discharge of a heavy responsibility” and having carefully followed the trial judge’s direction to separately consider all of the evidence in respect of each count alleged: MFA at [34].

  14. There are logical and reasonable bases for sustaining the different verdicts reached by the jury. Accordingly, the applicant has not established that the verdicts in respect of counts 1, 2 and 3 are inconsistent. Ground 1 should be dismissed.

Consideration – ground 2

Legal principles – unreasonable verdict

  1. The principles that are applicable to an appeal on the ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence, were explained by the High Court in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63. Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated:

“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’, or ‘dangerous or unsafe’. 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’.

…

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. 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.” (Footnotes omitted.)

  1. The principles were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

“[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. [1] However, the joint judgment in M went on to say: [2]

‘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’. [3] In M, Mason CJ, Deane, Dawson and Toohey JJ stated: [4]

‘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”.’”

1. M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ).

2. M v The Queen at 494.

3. Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50 (Deane, Toohey and Gaudron JJ).

4. M v The Queen at 492-493.

  1. At [22] French CJ, Gummow and Kiefel JJ said:

“[22]   On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. There is no doubt that the Court of Criminal Appeal was not bound by the ruling of the trial judge concerning the date of the 2006 offences. However, the Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence. The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the 2006 offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.”

  1. Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that actually concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J expressed the test for an intermediate appellate court (when considering whether the convictions sustained below were “unsafe or unsatisfactory”) in the following terms at [113]:

“[113]   … the question for an appellate court is whether it is 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.” (Footnote omitted, emphasis in original.)

  1. The High Court in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

“[45]   As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. [Pell v The Queen [2019] VSCA 186 at [24]] Libke did not depart from M.”

Application of principles in this case

  1. The High Court has made it clear that “imperfections of evidence”, including deficiencies in recollection, are “not uncommon in most trials”, and that “juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence”: MFA at [96].

  2. The jury’s advantage is not limited to its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

“[65]   It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ ... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. …” (Footnote omitted.)

  1. In the present case, the jury had an opportunity to assess the complainant and the applicant. Subject to the principles I have described above, the assessment of the credibility and reliability of the complainant was very much a matter within the province of the jury.

  2. Having reviewed all of the evidence, I have concluded that this was not a case where the complainant’s evidence contained “discrepancies, or display[ed] inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt”: Pell at [118]. Nor was the complainant’s evidence improbable or inconsistent with other unchallenged evidence: cf Pell at [119]. The complainant’s evidence was consistent with other evidence in the case, including the electronic messages and evidence of bruising to the complainant’s body.

  3. The complainant’s evidence was not inconsistent with the CCTV footage which was heavily relied upon by the applicant. As I have said, the CCTV footage shows a degree of intimacy between the complainant and the applicant at the Star Bar, and the applicant’s arm around the complainant as they walked to her apartment. The complainant explained that she engaged in this behaviour to mollify the applicant, by reason of the applicant’s threats. It was open to the jury to accept that explanation.

  4. The applicant relies, in addition to the verdict of not guilty on count 2, on 12 matters in support of his claim that the verdicts are unreasonable. I will deal with each of those matters individually.

  5. Items (i), (viii) – the applicant submitted there were critical inconsistencies in the complainant’s evidence. First, the applicant submitted that the complainant’s evidence that there was “no talking or touching” with the applicant whilst they were leaving Star Bar and walking out onto George Street was inconsistent with her later acceptance that the applicant had his arm around her waist, and that the pair were holding hands. It was submitted that the complainant made this concession when she was “confronted” in cross-examination by the CCTV footage, which showed the applicant’s arm around her waist.

  6. The applicant’s submission overstates the extent of any inconsistency in the complainant’s account. Senior Counsel for the applicant agreed with the trial judge that the image the applicant was asked about was taken “directly outside Central Local Court at Liverpool Street”. The complainant’s initial evidence was that there was no talking or touching when she and the applicant walked “out of the Star Bar and onto George Street”. That answer is not inconsistent with the complainant’s evidence that the applicant had his arm around her when they were walking down Liverpool Street, away from George Street. Similarly, the complainant’s acceptance that she was holding hands when she and the applicant were “walking through World Square” is not inconstant with her evidence that she and the applicant were not touching or talking when they left the Star Bar and walked onto George Street.

  7. Secondly, the complainant gave evidence that the applicant was in her apartment for two to three hours when the CCTV footage shows that the applicant was in her apartment for approximately five hours between about 6:30pm and 1:30am. The complainant said in the course of cross-examination that the applicant “left my unit before 1am”.

  8. To the extent that the complainant’s evidence contained inconsistencies, they were brought squarely to the attention of the jury. I do not regard either of these matters as affecting the complainant’s credibility or reliability. This is for the following reasons. The complainant readily accepted in cross-examination that the applicant had his arm around her waist after they left the Star Bar. The jury had the opportunity to see and assess the complainant giving that evidence. That the applicant had his arm around the complainant’s waist after they left the Star Bar was consistent with the complainant’s evidence that she had hugged the applicant in an attempt to pacify him. As the complainant explained, she felt that she did not “have another way to deal with” the applicant’s jealousy and anger. She readily acknowledged in her evidence that she held hands with the applicant when they walked through World Square. Contrary to the applicant’s submission about the complainant’s estimate of time at the apartment, her evidence was not precise. When asked how long the applicant was in the apartment, the complainant responded “around two or three hour probably”. Errors in estimating the duration of the time that passed whilst at the apartment do not affect the complainant’s credibility or reliability about the events that occurred whilst in the apartment.

  9. Item (ii) – the applicant submitted that Dr Woods’ notes contained a complaint about oral sex which was not part of the complainant’s evidence at the trial. When the complainant was asked in cross-examination whether, if she had told Dr Woods that oral sex had occurred, that would be incorrect, the complainant acknowledged that her memory at the time of speaking to Dr Woods would have been better than her memory at the time of giving evidence. In re-examination, the complainant clarified that she did not think that oral sex occurred on the night of the offences. Accordingly, the only evidence (the notes were not tendered) that the complainant reported to Dr Woods that oral sex had occurred is contained in Dr Woods’ notes and her expert certificate prepared for the proceedings, many months after her examination of the complainant. Dr Woods stated that her notes indicated that the complainant had alleged that she was also subjected to oral penetration.

  10. I do not regard this matter as affecting the complainant’s reliability or credibility. Much less do I find that the jury ought to have had such a doubt about the complainant’s reliability or credibility. Central to the applicant’s case (at least on ground 1) was the submission that there was no contest that both anal and vaginal intercourse took place on the evening in question. I do not regard a statement that, in addition, oral sex took place, as affecting the complainant’s credibility in any material way. In any event, Dr Woods spoke to the complainant without an interpreter. Dr Woods had no memory of what the complainant told her, and was entirely reliant on her notes. Exactly what, if anything, the complainant said about oral penetration, was a matter the jury was in the best position to assess.

  11. Item (iii) – the applicant submitted that the fact that the complainant wrote to the police in December 2018 expressing concern about the applicant being convicted, when he was so young, adversely affected the complainant’s credibility or reliability. I do not agree. To the contrary, the correspondence relied upon by the applicant does not contain any suggestion that the events did not take place as the complainant described them. The applicant also submitted that the complainant’s resolve finally to pursue the allegations against the applicant only crystallised upon receiving notice from her university that she was under investigation for academic misconduct. I have concluded that the jury were entitled to accept the complainant’s explanation that she initially wanted to be “kind” to the applicant, but that she proceeded with her complaint as “he did not acknowledge his fault and instead he revenged on me” by making a complaint to her university.

  12. Items (iv) and (v) – the applicant submitted that the fact that the complainant could not immediately recall whether she had had sex with the applicant on the Monday before the events the subject of the indictment or whether she had invited the applicant to dinner on 14 July 2018 adversely affected her reliability and credibility. I have concluded that these matters do not adversely affect the complainant’s reliability or credibility. As to whether she had had sex with the applicant the previous Monday, when shown the relevant electronic message, the complainant acknowledged that she had had sex with the applicant in the previous week. The relationship between the complainant and the applicant at that time was continuing, but deteriorating. The jury were best placed to consider that evidence in the overall assessment of the credibility and reliability of the complainant. As to whether the complainant had invited the applicant to dinner on 14 July 2018, the evidence is tolerably clear. The invitation was extended to the applicant to calm him down so that he would stop sending her angry and threatening electronic messages. I do not regard the complainant’s initial failure to recall these matters of detail as adversely affecting her credibility or reliability, much less that the jury ought to have so concluded.

  13. Item (vi) – the applicant submitted that the complainant’s failure to tell Mr M all of the details of the sexual assaults adversely affected her credibility and reliability. I do not agree. There may be many good reasons why a victim hesitates in making a complaint at all about the commission of a sexual offence. The complainant explained that she was embarrassed about telling Mr M the full details of the sexual assaults. Senior Constable Santosa also noted the complainant’s embarrassment and distress. The complainant also gave evidence that she understood that in China, the police would treat such a complaint as a matter between the couple and would only give the perpetrator a verbal warning. In this case, within 48 hours of the sexual assaults, the complainant had made a full complaint about the offences to the police. It was open to the jury to find that the complainant’s reluctance to disclose the sexual aspects of the assault to Mr M did not adversely affect the complainant’s credibility or reliability.

  14. Item (vii) – the applicant submitted that the failure of the complainant to mention vaginal intercourse in her initial complaint “necessarily impacted significantly” the complainant’s credibility. I reject this submission. Any failure of Senior Constable Santosa and Senior Constable Ward to record the complainant’s allegations of non-consensual vaginal intercourse in their initial notes does not reflect poorly on the complainant. The jury were not compelled to find that the complainant’s credibility was impacted at all by this matter. The complainant made a detailed statement to Senior Constable Ward shortly after she had made her initial complaints to Senior Constable Santosa and Senior Constable Ward, and that statement included reference to vaginal intercourse.

  15. Item (ix) – the applicant submitted that the CCTV footage of the Star Bar shows, at one point, the applicant and the complainant embracing. The footage does show an embrace. I do not regard this as having any necessary impact upon the complainant’s credibility or reliability. The complainant explained in her evidence that in embracing the applicant she was trying to calm the applicant down. The jury were entitled to accept that explanation. There is nothing about the CCTV footage which causes me to doubt the complainant’s reliability or credibility, much less conclude that the jury must have had such a doubt.

  16. Item (x) – the applicant submitted that the absence of express complaint about sexual assault in the electronic messages exchanged between the complainant and the applicant after the relevant events was significant. To the contrary, the jury could well have concluded that both the complainant’s electronic messages and the applicant’s electronic messages were consistent with the complainant’s account and inconsistent with the evidence given by the applicant. In particular, the electronic messages show the applicant contacting the complainant and demanding that she meet him at the Star Bar, where, according to the applicant, the complainant had engaged in “a regret[t]able and childish action.” This controlling behaviour may well have impacted upon the jury’s assessment of the relevant facts. Immediately after the sexual assaults the applicant wrote at 2:01am “are you okay?” and at 2:35am asked “are you going to tell your friends?”. The jury may well have concluded that these messages were supportive of the complainant’s account of the previous evening. The complainant’s responses to the first message, of “fine”, “need time recover heart hurt”, “I bend my kneel” and “Insult”, could well have been regarded by the jury as consistent with the complainant’s evidence. The electronic messages, in context, do not cause me to doubt the reliability and credibility of the complainant.

  17. Item (xi) – the applicant submitted that the complainant’s electronic messages on 15 July 2018 asking for help to correct a cover letter and asking what the applicant thought of a Korean restaurant adversely affected the complainant’s reliability and credibility. I have concluded that these message were not “inconsistent with the allegations involved in counts 1 and 3 being true” as was submitted. It is true that electronic messages were exchanged later that day that could have been regarded by the jury as inconsistent with violent non-consensual sex the previous evening. The jury was not, however, compelled to reason in that way. As the complainant explained, she was trying to be “peaceful” with the applicant at this time. The jury was entitled to accept that explanation.

  18. Item (xii) – the applicant submitted that the absence of any prior convictions was an important aspect of this case. I agree. The absence of prior convictions, however, did not itself, or in combination with all the other matters, compel the jury to have a reasonable doubt about the applicant’s guilt on counts 1 and 3.

  19. Having independently reviewed all of the evidence, including the CCTV footage, and taking into account the acquittal by the jury on count 2, I have concluded that it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt. I do not have any doubt about the applicant’s guilt on counts 1 and 3, much less do I conclude that the jury must have had such a doubt.

  20. The applicant has not demonstrated that the jury’s verdicts of guilty in relation to counts 1 and 3 are unreasonable.

Conclusion and orders

  1. The application for leave to appeal should be granted and the appeal dismissed save that it is necessary by reason of appeal bail having been granted to set aside the sentence imposed and impose a new sentence. The applicant should be taken into custody. There being no challenge to the sentence imposed by the trial judge, that sentence should not be modified, save that it will be necessary for a new commencement date to be fixed to address the fact that the applicant has been on appeal bail pending this decision. The same period of accumulation between counts 1 and 3 identified by the trial judge, 6 months, should be fixed. For the foregoing reasons I propose the following orders:

  1. Application for leave to appeal granted;

  2. Appeal dismissed save for order (3) below, which is necessary by reason of the applicant being granted appeal bail;

  3. Set aside the sentence imposed in the District Court on 9 April 2020 and in lieu thereof impose the following sentence:

  1. On count 3 in the indictment the applicant is sentenced to 12 months imprisonment commencing on 4 July 2020;

  2. On count 1 in the indictment, the applicant is sentenced to a non-parole period of 4 years to date from 4 January 2021 with an additional term of 2 years expiring on 3 January 2027. The offender is first eligible for parole on 3 January 2025;

  1. The applicant is to be taken into custody today.

  1. DAVIES J: In relation to Ground 1, I agree with the reasons of Payne JA. In relation to Ground 2, my own examination of the evidence leads me to conclude that the guilty verdicts in respect of counts 1 and 3 were entirely open to the jury for the reasons given by Payne JA.

  2. In particular, the Court was strongly urged to view Exhibits D, E, and F, being CCTV footage taken in the hours before the events giving rise to the charges against the applicant. Those exhibits were submitted by Senior Counsel for the applicant to support the applicant’s account that the sexual intercourse was consensual, to cast doubt on the credibility of the complainant, and ultimately with other matters to support a conclusion that the verdicts were unreasonable.

  3. I have watched the CCTV footage in those exhibits. In my opinion, nothing in them casts any doubt on the jury’s verdicts. Indeed, the images tend to support the complainant’s rather than the applicant’s account of events, and the interactions between them.

  4. I agree with the orders proposed by Payne JA.

  5. GARLING J: I agree with the orders proposed by Payne JA for the reasons which his Honour gives. Having considered all of the evidence which was before the jury, I entertain no doubt about the guilt of the applicant.

**********

Endnotes

Amendments

16 November 2020 - Minor typographical amendment at [14].

Decision last updated: 16 November 2020

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