Liu v The Queen

[2020] NSWCCA 100

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Liu v R [2020] NSWCCA 100
Hearing dates:	6 May 2020
Date of orders:	21 May 2020
Decision date:	21 May 2020
Before:	R A Hulme J; Fagan J; Hidden AJ
Decision:	1 Time is extended for the filing of the application for leave to appeal up to and including 4 December 2019. 2 Leave to appeal granted. 3 Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – sexual offences – indecent assault and sexual intercourse without consent – where complainant adult niece of applicant – whether consent given – sole ground of appeal whether verdict unreasonable – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Libke v The Queen (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 SKA v The Queen [2011] HCA 13
Category:	Principal judgment
Parties:	Sanwei Liu (Applicant) Regina (Respondent)
Representation:	Counsel: T Game SC with A Cook (Applicant) E Balodis (Respondent)   Solicitors: Nyman Gibson Miralis (Applicant) Solicitor for Director of Public Prosecutions (Respondent)
File Number(s):	2017/116238
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 September 2018 Before: Huggett DCJ File Number(s): 2017/116238

Judgment

1. THE COURT: This is an application for leave to appeal against the applicant’s conviction on two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent contrary to s 61I. The Crown alleged that the offences were committed in the early hours of 18 April 2017 at the applicant’s home at Chatswood. The trial commenced before Huggett DCJ in the District Court at Sydney on 13 September 2018. On 19 September 2018 the jury returned verdicts of guilty on all three counts. The sole ground of appeal is as follows:

The verdict is unreasonable, and cannot be supported, having regard to the evidence.

2. Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) because the ground involves questions of fact. The application for leave was filed out of time but the Crown does not oppose an extension and is content for the Court to consider the proposed ground on its merits.

3. There was no dispute at trial about the background to the relationship between the applicant and the complainant or the circumstances that led to them being alone together in the applicant’s home on the night of 17-18 April 2017. The applicant was born and raised in Inner Mongolia. He married in 1983. He established a clothing manufacturing business in China. The applicant moved to Australia with his wife and two teenage children in 2004. In August 2015 the complainant arrived in Sydney from China to study English and accounting. The complainant is the applicant’s niece; her mother and the applicant’s wife are sisters. Upon arrival in Sydney the complainant commenced to reside with her aunt and the applicant, who were then living in a house at Chatswood. Their daughter had apparently left home but the applicant’s son and daughter-in-law and their two children shared the house.

4. For 11 months the complainant continued to reside with her aunt, the applicant and the other family members in their home in Chatswood. In July 2016 she moved out to live in Burwood with a male partner named Jeratu. That relationship ended in about late January 2017. The complainant then resumed living with her aunt, the applicant and their son and his family, all of whom had by this time moved to a different house, still in Chatswood.

5. On 6 April 2017 the applicant’s son and his family departed for China on a business trip. The applicant’s wife left for China on 12 April 2017 to join her son and his family. From then until 18 April 2017, when the events giving rise to these charges occurred, the applicant and the complainant were the only occupants of the home. At that time the applicant was close to 60 years of age and the complainant was about 28.

The complainant’s evidence

6. In her evidence in chief, given entirely through a Mandarin interpreter, the complainant said that on the night of 17 April 2017 she was in her bedroom web browsing on her mobile phone when the applicant returned home at about 9:00 pm from a dinner engagement in the city. The bedroom door was open and as the applicant passed in the hallway she greeted him without leaving the room. The complainant remained in her bedroom. She continued web browsing until midnight and from then until 2:00 am she communicated on the WeChat application with a boyfriend in China named Mingyue.

7. The Crown tendered screen shots of WeChat text messages recorded on the complainant’s phone from 18 April 2017. At 1:48 am the applicant sent a message to the complainant: “Why haven’t you gone to sleep yet?” (All messages were in Chinese characters and the quoted words are the translations tendered by the Crown). The complainant replied: “Going to sleep right now”, followed by an “emoji”, being a face with one eye closed and the tongue out. The complainant said that by including this emoji she did not “really want to express anything […] I often use this”. She said that the meaning of the emoji to her was:

Just sort of make like - mischievous joking, relax, that kind of.

8. A few more short messages about going to sleep were exchanged between the applicant and the complainant, concluding with one from the complainant at 2:06 am: “Already gone to sleep”, followed by a smiling face. The complainant ceased using her phone at that time and was going to sleep. She was wearing underpants, long pyjama pants and a T-shirt. She said she lay under a blanket (in fact, a doona, as shown in police photographs) that covered her up to the shoulders. The complainant left her light on, which she said was her usual practice when sleeping. The door of the complainant’s bedroom was closed.

9. About 10 minutes after the 2:06 am message, the applicant knocked on her door and then entered before she could respond. He was wearing a blue towelling dressing gown, described by the complainant as a “sleeping gown”. He said, “I can’t go to sleep, can I have a chat with you?”. The complainant gave evidence that he then “chatted with me about 20 minutes, just non-stop”, on “insignificant” topics such as how his wife and son were doing in China. The bed was on the right as one entered the room, with the bed-head against the wall in which the doorway was located. In cross-examination the complainant said that during this conversation the applicant sat on the edge of the bed nearest the door and she was on the far side of the bed.

10. After 20 minutes of the applicant talking to the complainant he said “I cannot go to sleep, I want to sleep here”. The complainant said that she felt this was “very weird” and she was embarrassed so she told the applicant she felt thirsty and would go to the kitchen for water. The complainant left the room, went to the kitchen and boiled a jug of water. Commencing at about 3:09 am the complainant exchanged text messages with her boyfriend in China, including the following:

My uncle was woken up by me and then chatted with me.

Deep at night …

Then fell asleep … I am now full of embarrassment …

What should I do?

11. The complainant said that at this point in the messaging she was drinking water in the kitchen and she heard no sound from her bedroom. For that reason she thought he had gone to sleep. The boyfriend responded to the last message by saying, “Go to sleep”. The complainant’s messages over approximately the next 10 minutes included the following. She said that during this period she commenced to hear sounds from her bedroom of video clips being played and people talking, so she concluded that the applicant had not gone to sleep after all:

But he is in my room.

Really embarrassing.

I have come out to drink some water.

I’m wordless.

I feel utterly dumbfounded and embarrassed.

He said he couldn’t fall asleep and wanted to chat with me [followed by an emoji that the complainant said signified “something that you can neither laugh at or cry for”].

The problem is he has not fallen asleep yet …

[…] He said he couldn’t fall asleep, and wanted to chat with me. Then I chatted with him for a short while. And then he said, “Can I come to your room to sleep? I cannot fall asleep …”.

[…] He is watching some video on his mobile phone.

12. There followed an exchange shortly before 3:27 am in which the boyfriend suggested the complainant should go back to her room and talk with the applicant. She said, “In one bed?”. The boyfriend replied that she had “thought too much” and asked, “He is your uncle. What are you afraid of?”. He added: “Will he even mess around with you? Are you kidding me?”. Very shortly after this the complainant wrote to her boyfriend “Talking right now”. In evidence she said that she was on her way back to the bedroom at that point.

13. In evidence in chief the complainant said the applicant was still in her bedroom when she re-entered but she did not describe his position. She said she went around to the far side of the bed. She sat on the edge of it and “chatted” with the applicant for around 40 minutes. At about the commencement of this conversation, shortly before 3:34 am, she sent a message to her boyfriend, “Oh my”. She explained that this meant she did not wish to be talking with the applicant.

14. The complainant said that after about 40 minutes of conversation the applicant said, “Stop chatting, it’s late. Go to sleep, quickly”. She lay down under the doona thinking that he would go to sleep. Although she was not asked this in chief, from her description of what followed the applicant must have been already under the doona when the complainant got under it. She said he continued talking “for another little while”. Then he took her hand, placed it on his erect penis and moved it up and down for “no more than a few seconds” (count 1, indecent assault). The complainant said she was shocked and the following words were spoken (all conversation being in Mandarin):

Complainant:   Uncle, don’t do this, I want to go to other room to sleep.

Applicant:      It’s nothing, it’s nothing. It’s OK, it’s OK.

15. At the same time as telling the applicant “don’t do this”, the complainant tried to push him away. Immediately he put his hand under her clothes and started to touch her chest and then to lick her nipple (count 2, indecent assault). The complainant used one hand to try to block her chest area to keep him away from her breasts. The applicant was at this time trying to pull her pants down and she used her other hand to hold onto her pants. As this was occurring the following was said:

Complainant:   Don’t do this, I want to go to other room, stop doing this.

Applicant:   It’s OK, it’s OK.

16. The applicant then pulled down very hard on both the complainant’s underpants and her pyjama pants, to remove them. He threw them away. The complainant used one hand to try to block her chest area and the other hand in an attempt to block her vagina. She was lying on her back. The applicant removed her lower hand and inserted his penis into her vagina (count 3, sexual intercourse without consent). The complainant’s protest and the applicant’s response were as follows:

Complainant:   Stop, don’t do this, I want to go into other room to sleep, stop.

Applicant:   It’s OK, it’s just – it’s OK, little sister, listen to your big brother.

17. The complainant said that as the applicant had intercourse with her she was pushing him and that she was frightened and shaking with fear. He withdrew and ejaculated on her stomach. He used a pair of underpants to wipe the semen off. He then said, “Too late. Quickly go to sleep. I sleep with you”. The complainant got up straight away, put on a fresh pair of pyjama pants and went to another bedroom. The applicant remained in the complainant’s bed and went to sleep.

18. After the complainant had got into bed in another bedroom she sent a message to her good friend from English class, Scarlet, at 5:22 am: “Make sure to give me a call when you wake up tomorrow morning”. At 7:42 am she followed this up with a message: “I’ve something to tell you”. In a series of subsequent messages, she asked Scarlet to come to see her in Chatswood urgently and said, “For this matter, I can only tell you, and only you can help me”. The complainant’s messages conveyed that she was not willing to spell out, in that medium, what was troubling her. But Scarlet guessed and advised her to “keep the evidence” and not to take a shower. At about 7:50 am there was this exchange:

Scarlet:   Who is it that has done this.

Complainant:   My uncle.

Scarlet:   Did he ejaculate?

Complainant:   Outside my body.

19. Shortly before and after 8:01 am the complainant sent these messages to Scarlet:

It’s hurt me.

I didn’t expect it.

He is my uncle …

How come he could have done such a thing to me?

I am shaking all over

20. In explanation of the last of the above messages the complainant described having felt at the time sensations consistent with shock. She said she was holding her phone with both hands and that they were shaking, she could not stand firmly and felt “very light, … like a feather”. Shortly before 8:30 am the complainant left the house on foot and went to Starbucks restaurant in Chatswood, about seven minutes’ walk away. She was met there by Scarlet within the next hour and they walked to the police station. Scarlet, whose formal name is Sijia Tian, gave evidence that when she met the complainant she appeared to be wearing “a pyjama”, she looked as though she had run away from home, she was not calm and she said repeatedly, “How can he did [sic] this to me” and similar things.

Cross examination of the complainant

21. In cross-examination of the complainant the applicant’s version of events, as subsequently given in his evidence and as summarised at [25]-[30] below, was put to her. At all material points of difference this version was rejected by her. In particular: she denied having invited the applicant into her room and to get under the doona upon his first entry; she denied that he went to the kitchen and that she followed him there; she denied having made affectionate physical contact during their 40 minute conversation after returning from the kitchen; she denied having initiated sexual touching or having undressed herself at the applicant’s suggestion; she denied that the applicant had intercourse with her twice or that she took any pleasure in it or did anything other than resist. In response to the suggestion that she was “enjoying the sex” she said:

From my memory, I just had some drops of tears, silently, and I told him not to do this, I want to go to other room to sleep. […] [F]or the whole period, all I asked him is to stop, I wanted to go to other room to sleep. […] I wanted to stop him from assaulting me, from raping me, I want to end the situation as soon as possible.

Other evidence in the Crown case

22. The complainant spoke to officers at Chatswood police station from 9:20 am on the morning of 18 April 2017. The senior constable who took her statement at that time made the following observations of her:

very upset … nervous, scared. She was crying. She was visibly upset. She was quite subdued. She was very shy and very upset.

23. The complainant attended North Sydney Sexual Assault service between 1:15 pm and 3:04 pm on 18 April and was examined by a registered nurse. Ms Tian, a counsellor and a Mandarin interpreter were also present. A statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) was tendered in evidence. In this it was agreed that no injuries were seen on a full external physical examination and that the nurse obtained from the complainant, via the interpreter, a history of the alleged sexual assault, recorded by the nurse in these terms (extracted so far as relevant):

My Uncle then sent me another message and I told him I was going to sleep. About 10 minutes later he knocked on my door and said he wanted to chat with me as he couldn’t sleep. He chatted for 20 minutes to half an hour, and then he said he would sleep in my bed. I was very shocked and embarrassed. I got up and went to the kitchen thinking “what should I do?” I was so embarrassed I didn’t know what to do. I stayed in the kitchen for about 20 minutes and spoke to my boyfriend again about it. He said I should go as he is my uncle so wouldn’t do anything bad. I went to my bedroom and he was under the covers lying flat. I went in and talk to him, hoping to make him tired so he would go to sleep. I was so uncomfortable. At that time it was 4am and I thought he was asleep. I lay down and he grabbed my hand and put it on his private part moving up and down. I was in big shock and asked him what he was doing. I said, I need to go. Then he grabbed my clothes and pulled himself on top of me. He was very strong and pulled my pants and undies off and threw it away. His hands were everywhere. Then he licked my breast and nipples. Then he turned me around and was doing it. (1) I was in big shock. He ejaculated and used his undies to wipe it away. He ejaculated on my stomach. Then he said lets go to sleep. I changed into my clothes and he was asleep already. I then went to another bedroom sleep.

(1) Clarification: He put his penis into her vagina.

24. Another agreed fact was that, upon analysis of a skin swab from the complainant’s abdomen, semen was detected and the DNA recovered had the same profile as that of the applicant.

The issue at trial

25. The applicant gave evidence. He did not dispute that he had sexually touched the complainant and had sexual intercourse with her in the early hours of 18 April 2017. The issue was whether the complainant had consented to this. In chief the applicant said that after exchanging messages with the complainant he knocked on her bedroom door and she said words to the effect, “Please come in”. She was sitting in the middle of her bed with the doona over her. The applicant said, “I can’t fall asleep, let’s have a chat”. The complainant asked him to sit down on the bed and then asked him “to get under the doona because she said it was a bit cold; asked me to get into bed”.

26. The applicant said that they spoke for about 20 minutes concerning the complainant’s activity of selling imitation designer handbags. He then said that he needed water and went to the kitchen. The complainant followed him. He boiled the jug, poured a cup of hot water for each of them and carried the two cups back to the complainant’s bedroom, with her again following. The applicant said that they both got back into bed with the doona over them, up to the lower abdomen. In that position they conversed for about 40 minutes, during which the applicant told the complainant that if she were to marry he would pay for her wedding and that he was thinking of buying her a motor vehicle. The applicant said that from when he spoke of paying for her wedding the complainant held his right hand with her left and leaned her head on his right shoulder.

27. According to the applicant’s evidence in chief, at the end of the 40 minutes of conversation he said, “It’s too late. Let’s go to sleep”. Both of them then lay down and the complainant placed her right arm across his body and was hugging him. Then she touched his penis with her right hand. He said:

It was her who started touching me. […] When she started touching me, I didn’t, I couldn’t help. […] Then, eventually, I said: “If you are willing, then get undressed”. She replied with an “okay”.

28. The applicant said that they both then undressed and started “touching each other”. He “first started touching her breasts” and she “sat up then she started touching [his penis]. […] After, we hugged each other for a while and touched each other for a while, then we started having sexual intercourse”. He said that he could hear the complainant making sounds and that she had an orgasm. The applicant said:

I felt a bit tired after 3 to 5 minutes. … I said: “Have a rest”. [He withdrew]. … She was looking at me and smiling. After I rested 3 to 5 minutes […] then we continued.

29. The applicant said that they resumed touching each other, followed by further sexual intercourse during which the complainant was looking at him and appeared very happy. He said the complainant again had an orgasm and that he then ejaculated on her lower abdomen. After this she said, “Just a little bit embarrassed”, with a smile. The applicant used his black underpants to wipe the semen off her stomach. About a minute later the complainant got up and put on fresh pyjama pants, then returned to the bed. They both then lay together under the doona. There was further brief conversation, quoted at [44](8) below, and then the applicant said again, “It’s too late. Let’s go to sleep”. The complainant was still hugging him and her head was leaning against his right shoulder and chest at this time.

30. The applicant said that he woke at about 4:00 am and found that the complainant was no longer in bed with him. He found her sleeping in another bedroom and told her that she could go back to her own room and he would go back to his. She said, “Uncle, I’m okay. You go to sleep.”

The applicant’s argument

31. The applicant submits, uncontroversially, that the question raised by the sole ground of appeal is “whether [this Court] thinks that upon the whole of the evidence it was open to the jury to be satisfied that the accused was guilty”. The applicant cites M v The Queen (1994) 181 CLR 487 at 493-494 (Mason CJ, Deane, Dawson and Toohey JJ) and SKA v The Queen [2011] HCA 13 at [21] (French CJ, Gummow and Kiefel JJ). Finding beyond reasonable doubt that the applicant was guilty depended upon the jury being satisfied to that standard that the complainant’s evidence was correct, that she did not consent to any sexual touching or intercourse. An inherent corollary is that in order to reach their verdicts the jury had to reject the applicant’s account and be satisfied that it gave rise to no reasonable possibility that the complainant invited or initiated sexual contact or that she manifested consent by exhibiting pleasure or in the other ways asserted by the applicant.

32. The applicant relies upon the features of the evidence summarised under the following five sub-headings. He contends that each of these, and all of them in combination, undermined the credibility and reliability of the complainant to such an extent that it was not open to the jury to be satisfied beyond reasonable doubt of her claim that she did not consent.

1. Suggested variance in evidence: getting under the doona with the applicant

33. The applicant submits that there were differences between the complainant’s evidence in chief, her statement to police and her answers in cross-examination concerning the point at which she got under the doona after returning from the kitchen. Her evidence in chief is summarised at [13]-[14] above: at first she sat on the edge of the bed and conversed with the applicant for around 40 minutes; when he said they should stop chatting, she got under the doona and lay down thinking he would go to sleep; he continued to chat “for another little while”; then he commenced the sexual contact.

34. In cross-examination it was put to the complainant that the applicant had gone to the kitchen; that she had followed him; that he had poured her a cup of hot water and that she had again followed him when he carried the water back to her bedroom. The complainant denied all of this. She said that the applicant remained in her bedroom while she was in the kitchen and that, as he was her senior, he would not have poured water for her. She gave these answers about events when she returned to her room:

Q   When you went back into the room you say [the applicant] was under the blanket?

A   Yes.

Q   And you got into the bed with him, correct?

A   Yes, from memory, I was sitting on my side of the bed at the edge of the bed.

Q   Did you get back under the covers of the bed at that time?

A   I was trying to chat with him because he mentioned that he couldn’t go to sleep, I thought I will chat a little bit more with him.

[…]

Q   […] I’ll ask my question again, did you get back under the blanket at that time?

A   My memory as I was sitting there chatting with him, from memory I didn’t go under the blanket at that point.

35. It was open to the jury to find this evidence entirely consistent with the complainant’s evidence in chief on the same subject. The cross-examiner returned to the topic two pages later in the transcript. The jury could have found her further answers also consistent as to a prolonged conversation before the complainant got under the doona, followed by brief additional conversation before the applicant commenced sexual contact:

Q   […] when you had come back from the kitchen, and you got into the bedroom, you got under the covers, correct?

A   From my memory, I sat for a while.

Q   At some point, did you get under the covers […]?

A   You mean doona, right?

Q   Yes.

A   Yes.

Q   When you got under the doona, [the applicant] was under the doona as well, correct?

A   Yes, when I returned, he was half lying down, that was something like that, and he has the cover up to here.

Q   Up to where?

A   Just around here, near the shoulder area. That’s from my memory.

Q   So when you got under the doona, you say [the applicant] was already under it, is that right?

A   Yes.

Q   And when you got under the doona, both of you were in the bed together, correct?

A   I had a bit of distance, because he kept chatting with me, maybe he wants to distract me.

[…]

Q   And you were chatting together under the covers, correct?

A   I think it should be, I sat for some time before I entered the cover. I think it was at the time he said, “Stop chatting, it’s too late, go to sleep”.

36. Defence counsel then put to the complainant two sentences from her police statement. The following answers were given:

Q   You said to police, “I returned to my bedroom and my uncle was laying in my bed under the quilt”?

A   Mm.

Q   You then said to the police, “I got back into bed and talked to my uncle”?

A   Mm.

[…]

Q   What I’m suggesting to you is that after you get back under the doona, you’re having a conversation with him, aren’t you?

A   From memory we chatted for a long time, a long, long time, it was like at 30 or 40 minutes.

37. The two sentences quoted from the complainant’s police statement were, individually, consistent with the account she had given once in chief and twice in cross-examination. There was not put before the jury sufficient of the police statement to enable them to determine whether, in context, the words “got back into bed” meant under the “quilt”. Nor was there sufficient context given for the jury to know whether she meant that this occurred straightaway or only after some conversation with the applicant. It was not put to the complainant that she had intended to convey by her police statement a sequence different from that which she had given repeatedly in oral evidence. She was not confronted with a proposition that her statement was in this respect materially at odds with her evidence; nor was she asked to explain how the putative difference came about. In those circumstances the jury were not bound to regard the police statement as a prior inconsistent representation of the timing of the 40 minutes conversation relative to the complainant getting under the doona. Nor were they bound to regard any of this as undermining her credibility on the critical aspect of her evidence, namely her lack of consent to the sexual contact that followed and her unequivocal communication of non-consent to the applicant.

38. The last answer quoted at [36] above was ambiguous. The jury were not bound to interpret it as meaning that the 30 or 40 minutes of conversation took place after the complainant lay down under the doona, particularly in circumstances where she had said three times that that occurred while she was sitting on the edge of the bed and that only brief additional conversation followed after she got under the doona. The cross-examiner did not take the complainant back to her earlier answers to clarify whether she was changing her account.

39. The complainant’s statement to the nurse who examined her (see [23] above) was consistent with her evidence in chief except that she told the nurse she thought the applicant was asleep when she lay down, whereas in evidence she said that conversation with the applicant continued up to that point and briefly thereafter. The complainant was not cross-examined on this minor difference. It was open to the jury to conclude that this discrepancy did not detract from the complainant’s evidence of non-consent.

40. Defence counsel’s final address proceeded on an assumption that the complainant had said she got straight under the doona with the applicant upon returning to her bedroom from the kitchen. He made no reference to her repeated evidence to the contrary. It was open to the jury not to accept counsel’s assumption, or the implication that he sought to make from it that the complainant sought intimate proximity with the applicant. When a cross-examiner elicits what he or she perceives to be inconsistent evidence or a concession as to a prior inconsistent statement made out of court, the perceived contradiction may not carry much weight with the jury if there is room for argument as to whether the witness’ statements on different occasions really are in conflict, or if it appears that the witness may have been misunderstood on one or more of the occasions or that there may be some other explanation. Prior inconsistent statements may be most impressive to a jury when the witness has been confronted with the difference, invited to explain it and then asked to agree that it arises from a lack of genuine experience of the asserted fact. The complainant was not so confronted.

41. Even if the jury thought the complainant had returned from the kitchen and got straight under the doona with the applicant, then conversed with him for 40 minutes in that situation, they were not bound to regard this, either alone or in conjunction with other matters, as giving rise to a reasonable doubt about the complainant’s express lack of consent to the sexual contact that followed. It was open to the jury to regard a prolonged conversation under the doona, if it occurred, as the response of a young woman embarrassed by her 60-year-old uncle’s intrusion into her bed in the middle of the night. It was open to the jury to find her conduct explicable on the basis that she was reluctant either to go to another bedroom or to insist that he leave, with the implicit accusation of her senior, or at least suspicion, that either of those solutions would entail.

2. Inconsistent statement to police: returning to bed after intercourse

42. The complainant said in evidence that after she had put on fresh pyjama pants following the sexual intercourse, she went directly to another room. It was established that in her police statement she had said that, having put on the fresh pants, she got back into bed with the applicant. When questioned about this the complainant was firm that she had gone directly to another bedroom. It was open to the jury to accept her oral evidence and not to treat the contrary statement to police as significant in itself or as undermining her credibility generally or with respect to the critical issue. The complainant was not invited to explain why her statement to police should have been different from her recollection at trial on this point. The cross-examiner merely put to her that her oral evidence in this respect was a lie, which the complainant rejected. It was within the province of the jury to find the complainant’s account generally credible and to discount an inconsistency such as this in a statement taken on the morning after the alleged events when, to the investigating officer’s observation, she was visibly upset.

3. The applicant’s case of financial importuning by the complainant

43. Towards the end of the complainant’s cross examination the following proposition was put to her:

Q   You slept with him in the aim of getting money from him, correct?

A   No

44. As a foundation for that question defence counsel put to the complainant a number of occasions on which it was suggested she had sought from the applicant loans or gifts of substantial sums of money. It was put that some of these requests had been accompanied by affectionate and sexually suggestive physical contact by the complainant. She denied all of those suggestions. The applicant in due course gave evidence that the following requests had been made:

1. In about July 2016 the complainant told him that she had bought off the plan a unit in St Leonards and another in Ryde. She asked for a loan of RMB300,000 (approximately $60,000) to make the initial payment for one of the units. The applicant arranged for the money to be transferred to a bank account of the complainant’s parents.

2. In January 2017 the complainant asked the applicant for a loan of RMB380,000 (approximately $76,000) to repay a debt due to the man she had been living with in Burwood, Jeratu. This money was also transferred to the bank account of the complainant’s parents.

3. In February 2017 the complainant asked the applicant for approximately $25,300 for stamp duty. The applicant arranged for his son to draw a cheque in that amount, which was provided to the complainant on 20 February 2017.

4. On 13 April 2017, when the applicant and the complainant were walking home after watching a movie in Chatswood, she asked for a loan of $2 million “in case she needs to settle” the purchase of the units in St Leonards and Ryde. The applicant told her he did not think she had the capacity to purchase these properties and he did not say he would lend the money.

5. On 15 April 2017, on a train excursion to Wollongong, the complainant put her hand on the applicant’s thigh and leant her head on his shoulder as she again asked for a loan of $2 million. The applicant gave this evidence:

I told her that I purchased five properties here - four in Chatswood, one in Killara. At this moment in time, I had no spare money to lend it to her. […] [G]iven the amount is huge – AUD$2 million is equivalent to 10 million RMB - I have no other choices.

6. On 15 April 2017, on the return train trip to Sydney, the complainant repeated her affectionate touching and her request for a loan of $2 million. The applicant gave the following evidence of his response on this occasion:

Then I said, “Given it’s huge amount and you know your Aunt is in charge of the financial situation of the whole family I can’t make a decision. If she agrees to it I have no objection”.

7. At [26] above, reference has been made to the applicant’s evidence that when he was in the complainant’s bed talking to her for about 40 minutes before the sexual activity, he offered to pay for a wedding for the complainant and she responded by holding his hand and leaning her head against his shoulder.

8. The applicant said that after the intercourse the complainant put on fresh pyjama pants, got back into bed with him and referred to the $2 million, saying “You help me to pay off St Leonards property and Ryde property”. The applicant said that this was followed by an exchange as follows:

I said: “It’s a huge number. Equivalent to 10 million RMB. I can’t make a decision. You can ask it from your aunt. If she agrees to it or if she’s willing, then I would agree”.

She said: “You think about it. If you don’t give me the AUD$2 million, you will regret.” And she said it with a smile on her face.

45. When these matters were put to the complainant in cross-examination the following were her responses:

1. The complainant agreed that in 2016 she bought off the plan a unit in St Leonards for $1.3 million and one in Ryde for $600,000. She did not ask the applicant for RMB300,000 in connection with these contracts but spoke only to her parents about an initial payment on a unit.

2. Jeratu had made the initial payment of approximately RMB380,000 for the Ryde property. The complainant did not ask the applicant for this sum, in order to repay Jeratu, but she asked her parents for it while they were visiting Sydney in January or February 2017. They said they would help. She said that telling her parents was “equivalent to tell each one of them”, meaning the applicant as well.

3. The complainant did not ask the applicant for stamp duty of about $25,300. She agreed that such an amount was payable and that she had spoken to her mother about it. She assumed that her mother had in turn discussed it with the complainant’s aunt. The complainant agreed that she received a cheque for the required sum from the applicant’s son.

4. The complainant denied that on 13 April 2017 she asked the applicant for $2 million to settle the purchase of the units. In July 2016 she had

already approached real estate agent trying to sell [the units]. I didn’t expect to reach settlement for this.

5. The complainant denied that on the way to Wollongong on 15 April 2017 she put her hand on the applicant’s thigh. She said, “This can never happen in my lifetime”. She denied that she leant her head on his shoulder. She said they sat on three adjacent seats, with a bag in between them. The complainant emphatically denied that she asked the applicant for $2 million during this train trip.

6. The complainant said that the return trip from Wollongong was during peak hour and that she and the applicant sat apart. She denied that she put her hand on his thigh or leant her head on his shoulder. She also denied that she asked the applicant about money for the properties. She said:

I didn’t have to worry about […] those two units, because one was 2019 or 2020, around that time to be settled.

7. The complainant agreed that during the approximately 40 minutes conversation in her bedroom prior to the sexual contact the applicant said he would help to arrange a wedding in Australia and that he wanted to buy her a second hand car. She denied that she held his hand or put her head on his shoulder. She said:

I had a bit of distance from him because I felt a bit embarrassed, I did have distance from him.

8. The complainant was asked, “About one minute after the sex, did you ask him again about the $2 million?”. The complainant denied this and said there was no discussion about money after the sexual intercourse. She denied that she continued to lie next to him with her arm across his shoulder.

46. The applicant submits that the applicant’s evidence established a “motive [for the complainant] to lie”. However, it was open to the jury not to accept the parts of the applicant’s evidence summarised above and to prefer the complainant’s denial that she pressed the applicant for money. Even if it was accepted that the complainant made such requests, it would not follow that the jury must have felt a reasonable doubt about her evidence that the sexual contact and intercourse were non-consensual.

47. Indeed, the jury could have found the applicant’s case, including defence counsel’s final address, lacking coherence in the attempt to draw a connection between the complainant’s alleged requests for money and the issue of consent. In final address defence counsel said of the alleged requests prior to 17 April 2017 only that they provided “a context” for what occurred that night. Counsel submitted:

It must be a coincidence that, after sex, she raised something that had value to her.

Counsel was referring to the threat that the applicant alleged had been made following the sexual intercourse (see [44](8) above):

She said: “You think about it. If you don’t give me the AUD$2 million, you will regret.” And she said it with a smile on her face.

48. There were rational bases upon which it was open to the jury not to accept that such a threat was made. First, they would have been entitled to find it not rational or credible that the complainant should have responded in those terms to the applicant saying that if the aunt agreed he would also agree. The effect of his evidence was that he had expressed acquiescence in the provision of $2 million. All that remained was for the complainant to approach the aunt.

48. Secondly, it was not in dispute that within about three hours of the putative threat the complainant was informing her friend Scarlet of a sexual assault by her uncle and exhibiting distress. Within about another two hours she was telling the police at Chatswood. It was open to the jury to find the allegation of an extortion attempt incompatible with the complainant’s immediate accusation of rape, without allowing any opportunity for the applicant to act upon the supposed blackmail. It was open to them to find that her immediate complaint and manifestations of distress were inconsistent with her having participated in the sexual acts willingly as part of a plan to “[sleep] with him in the aim of getting money from him” (see [43] above).

49. Defence counsel’s argument to the jury, repeated on the application for leave in this Court, was that the complainant must have interpreted the applicant’s statement, that he was leaving the decision on the $2 million to his wife, as an effective “no”. According to the applicant’s evidence the complainant had heard that answer on the way back from Wollongong two days earlier (see [44](6) above). The Court is unable to see how this argument goes any way toward reconciling the complainant’s prompt report to police with the proposition that she had purposefully slept with the applicant to extort money. The jury could have been unpersuaded by defence counsel’s argument and could reasonably have excluded the possibility that the complainant consented to sex as part of an extortion scheme, or otherwise.

50. Collaterally to the applicant’s submissions in this Court about the complainant’s alleged financial demands, he submits that the jury should not have believed her evidence that she agreed to see a movie with the applicant on 13 April 2017 after running into him in the Chatswood shopping precinct. It is submitted that the applicant’s evidence was to be preferred, that she invited him to the movies while they were at home. The applicant submits that this conflict was significant because of his claim that a $2 million loan was discussed during the walk back after the movie. There was nothing inherently implausible about the complainant’s recollection of where she encountered the applicant. The jury were not bound to reject her account or to find that it discredited her generally. There is no reason why this subsidiary issue should have assumed importance in the jury’s deliberations on the central question of consent.

51. The applicant also submits that the complainant was “rattled” when asked, “What date, what time?” with respect to RMB300,000 that she said came from her parents for the initial payment on one of the units. It was open to the jury to conclude that her inability immediately to provide these particulars was unsurprising and that her apparent confusion about being questioned upon such details of a financial transaction, very early in her cross-examination with respect to sexual assault charges, was understandable and did not indicate evasiveness or untruthfulness.

4. Lack of injuries to the complainant

53. The applicant submits the following:

Given the version of forceful sexual and indecent assault as was described by the complainant […], it is submitted that it would be expected that the complainant would have some injuries or some marks that would have been obvious during the physical examination.

54. This is not supported by reference to any medical evidence in the trial to the effect that the manner in which the applicant forced himself upon the complainant as she tried to block him and push him off, as described by her and summarised at [14]-[17] above, would likely have caused visible injuries. It was open to the jury applying their common sense and knowledge of the human body to find it credible that a struggle as described by the complainant could occur without injury. The complainant gave no evidence of having been struck or scratched or choked, for example.

5. The applicant’s evidence and character evidence

55. The applicant’s written submissions contain a detailed summary of his evidence at trial, accompanied by the following contentions about the jury’s evident rejection of his claim that the complainant invited, initiated and consented to sexual touching and intercourse (emphasis added):

57   The [applicant’s] evidence at trial was a simple, straightforward and consistent denial that any intimate or sexual act was without the consent of the complainant. He consistently maintained (in his evidence in chief and cross-examination) that all intimate and sexual contact with the complainant was consensual.

60   The evidence given by the [applicant] at trial was internally consistent, plausible, measured and made sense. There were no apparent flaws or gaps in the evidence given by the [applicant]. It is submitted that the cross-examination at trial did not “gain any traction”.

61   From a thorough consideration of the evidence as a whole, and properly applying the relevant directions, the jury ought not to have rejected the [applicant’s] evidence, or in the alternative should have at least found that there was a reasonable possibility that the evidence given by the [applicant] was truthful.

56. Evidence of good character was adduced in the applicant’s case. His submissions to this Court include the following:

67   […] The Crown case was not of such strength or so overwhelming as to diminish the significance of the character evidence when the character direction is properly applied.

57. It was for the jury, not for this Court, to evaluate the applicant’s evidence and any other evidence favourable to him. Against all of that was the account given by the complainant and the evidence of her almost immediate report of sexual assault. This Court may only intervene if it concludes, on the whole of the evidence, that the jury “must, as distinct from might” have had a reasonable doubt about the applicant’s guilt (see Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J)). In this case that translates into a question whether they must have had a reasonable doubt about the complainant’s non-consent. The appeal ground is not advanced by the applicant urging that he was a compelling witness. The jury was not bound to think so.

Conclusion and orders

58. In oral submissions the applicant contended that a number of arguments in the Crown prosecutor’s final address were impermissible and unfair. None of the matters identified was the subject of complaint to the trial judge. There was no request for a corrective direction. Nor is there any ground of appeal relying upon the impugned arguments. Nevertheless the applicant made the following submissions orally:

(a) you would draw no confidence that the case was properly and fairly put by the Prosecutor in closing address [and] (b) that […] is what the Prosecutor was driven to [in order to] get a conviction.

[T]his material [can] give one no confidence in what follows from an address so framed. It’s not a fair address.

[…]

(1) you wouldn’t have the comfort of knowing that the case was properly put, (2) it actually shows the fragilities in the Prosecution case, and the dangers in [respect] to was the extortion established, did the jury accept the extortion.

59. The Court does not accept that the Crown address was impermissible or unfair in the respects alleged. Where there is no appeal ground directly raising these complaints it is not necessary to recite them in these reasons, to address them individually or to consider the application of r 4 of the Criminal Appeal Rules. Contrary to the assumption in the above-quoted oral submissions, the Court does not determine an unreasonable verdict ground by inquiring whether it can rely upon the verdicts as having flowed from fair persuasion by the Crown. The ground looks to the evidence, not to the addresses. It must be determined according to whether the verdicts are unreasonable having regard to the evidence and/or are unsupported by it, applying tests sanctioned by the High Court.

60. On considering the whole of the evidence and taking into account the aspects of it to which the applicant has drawn the Court’s attention, we are satisfied that it was open to the jury to find the accused’s guilt proved beyond reasonable doubt on all three charges.

61. For these reasons the orders of the Court will be:

(1)   Time is extended for the filing of the application for leave to appeal up to and including 4 December 2019.

(2)   Leave to appeal granted.

(3)   Appeal dismissed.

Decision last updated: 21 May 2020