Ngo v The King - [2023] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ngo v R [2023] NSWCCA 201
Hearing dates: 19 May 2023
Decision date: 22 August 2023
Before: Adamson JA at [1]; Ierace J at [116]; Chen J at [148]
Decision:
(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.
(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
(3) Dismiss the appeal.

Catchwords:
CRIME — conviction appeal — where applicant acquitted of three sexual offences but convicted of a further three sexual offences — whether verdicts returned by the jury were inconsistent
CRIME — conviction appeal — admission of evidence of “bad character” of applicant — whether trial judge should have made an anti-tendency direction — application to discharge jury made and denied in course of trial — anti-tendency direction not requested by applicant’s trial counsel — whether failure to give direction led to miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HE, 61E, 61L, 112
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), ss 161, 294, 294AA
Evidence Act 1995 (NSW), ss 95, 128, 191
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AH v R [2019] NSWCCA 152
Booth v R [2022] NSWCCA 113
Browne v Dunn (1893) 6 R 67
Bussey v R [2020] NSWCCA 280
Cullen v R [2022] NSWCCA 63
Ganiji v R [2019] NSWCCA 208
Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Meher [2004] NSWCCA 355
R v Murray (1987) 11 NSWLR 12
R vTangye (1997) 92 A Crim R 545
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Soames v R [2012] NSWCCA 188
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties: Sang Ngo (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Lewer / A Faro (Applicant)
D Scully (Respondent)
Solicitors:
Veronica Love Lawyer (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/114647
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 November 2021

Before:

Arnott SC DCJ

File Number(s):

2020/114647

HEADNOTE

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

Sang Ngo (the applicant) was charged with three counts of intentionally carrying out a sexual act – namely, masturbation – towards the victim without her consent and knowing that she did not consent contrary to s 61KE(a) of the Crimes Act 1900 (NSW) (counts 1, 2 and 3), two counts of sexual assault contrary to s 61L of the Crimes Act (counts 4 and 5) and one count of breaking and entering a dwelling in circumstances of aggravation (knowing that a person was present) contrary to s 112(2) of the Crimes Act (count 6). The applicant was found guilty of counts 4, 5 and 6 by a jury.

The applicant and the complainant were in an intimate relationship between October 2019 and March 2020. The relationship was turbulent, and they often argued. On four occasions, police were called to the complainant’s flat, where the applicant would often stay, in the course of or following them arguing. After an incident in March 2020, the applicant was subject to an AVO. He nevertheless remained in contact with the complainant. The events subject of the counts occurred in April 2020.

In relation to counts 4 and 5, the complainant gave evidence that she repeatedly told the applicant to stop masturbating in front of her in her bedroom (the alleged conduct subject of count 3), which he ignored. She stated that he then forced her onto the bed, digitally penetrated her and had penile-vaginal sex with her. She had told him to stop and tried to move but felt that she could not fight back.

In relation to count 6, the complainant’s evidence was that, following these events, when the applicant fell asleep, the complainant looked at his phone and found that he had been talking to another woman. She took the phone and hid it. When he awoke on 15 April 2020, the applicant became angry and aggressive, and left the flat. He came back later to get the phone off her, including by endeavouring to enter through a window as the front door was locked. He returned the next day, 16 April 2020, and the complainant gave him his phone back. She then locked the door. Later that day, when the complainant was still at home, the applicant came back again, banged on the door and broke through. The applicant’s evidence was that, on 15 April 2020, after pleading for the complainant to return his phone to him in her apartment, he stormed out through the front door, causing the lock and chain to break from the doorframe. He stated that it was an accident. He denied going on the premises on 16 April 2020.

The defence case at trial was that the applicant had consensual sex with the complainant and that he had accidentally damaged the door when leaving the flat on 15 April 2020. The essential submission made on behalf of the applicant was that the evidence of the complainant should not be accepted because she was not a credible witness.

The applicant sought leave to appeal against his conviction on three grounds: first, that the verdicts of guilty on counts 4 and 5 are inconsistent with the acquittal on count 2, secondly, that the admission and use of the evidence of the applicant’s bad character resulted in a miscarriage of justice and, third, that the failure to give a direction in accordance with s 95 of the Evidence Act 1995 (NSW) (an anti-tendency direction) resulted in a miscarriage of justice.

The Court held, dismissing the appeal:

Ground 1 (Chen J, Adamson JA and Ierace J agreeing):

The ready explanation for the acquittal on count 2 is that the jury considered the matters advanced in connection with Exhibit 3 (a photograph of the complainant in her underwear said to have been taken after the alleged offending conduct) to create sufficient doubt as to the guilt of the applicant in relation to this count. It would not be open to suggest that such a process of reasoning would be illogical or the product of the jury failing to adhere to its task. Rather, it provides the basis for confidence that the jury has considered each count separately on the evidence relevant to that count: [198], [211] (Chen J).

Mackenzie v The Queen (1996) 190 CLR 348, 366; [1996] HCA 35, applied.

AH v R [2019] NSWCCA 152 at [62], applied.

The complainant’s evidence in connection with lack of consent in relation to counts 4 and 5 (and the applicant’s knowledge of this) was clearer and appreciably stronger than the evidence on count 2. This provides a further basis to differentiate, and provides a plausible explanation for, the verdicts: [207]-[208] (Chen J).

Grounds 2 and 3 (Adamson JA, Chen J agreeing)

Adamson JA

The Crown is not required to adopt all the evidence of each of the prosecution witnesses as part of its case or obliged to put propositions in accordance with such evidence to an accused in cross-examination. The prosecutor therefore had no obligation to put to the applicant in cross-examination those matters of bad character about which the complainant had given evidence which did not form part of the Crown case: [95]-[96].

Whitehorn v The Queen (1983) 152 CLR 657 at 674; [1983] HCA 42, applied.

It can be inferred that the fact that the applicant’s trial counsel did not seek an anti-tendency direction reflected a legitimate forensic choice to give no credence to the possibility that the applicant was violent or behaved badly towards the complainant, given the substantial challenge to the complainant’s credibility on which the defence case was based. Therefore, a lack of direction did not give rise to a miscarriage of justice. The same could be said of the applicant’s trial counsel failing to object to the admission of the complainant’s evidence of the applicant’s bad character and her failure to seek a direction that the jury disregard it: [109]-[110].

Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194, distinguished.

Ierace J

It did not occur to either counsel or the trial judge that an anti-tendency direction was required. It appears that both counsel proceeded on the basis that the extraneous allegations should not be further pursued or highlighted. It does not necessarily follow that a mix of acquittals and convictions demonstrates that the jury did not take the extraneous allegations into account in arriving at convictions for the last three counts. Therefore, the absence of an anti-tendency direction caused a substantial miscarriage of justice: [145]-[147] (Ierace J).

Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194, distinguished.

Judgment

ADAMSON JA: Sang Ngo (the applicant) seeks leave to appeal against his convictions on counts 4, 5 and 6 following a trial by jury in the District Court over which Arnott SC DCJ (the trial judge) presided.
The applicant was tried on indictment and charged with six counts as follows:

he intentionally carried out three sexual acts (masturbation) without the complainant’s consent on 11 or 12 April 2020 (counts 1 and 2) and 14 April 2020 (count 3);

he twice had sexual intercourse with the complainant without her consent and knowing that she did not consent on 15 April 2020 (counts 4 and 5); and

he broke and entered the complainant’s dwelling house in circumstances of aggravation (knowing that a person was present) on 16 April 2020 (count 6).

The conduct alleged in these charges arose from a relationship between the applicant and the complainant who were, at the time, aged 30 and 31 respectively. It was an agreed fact that the complainant met the applicant in January 2019. They were in an intimate relationship between October 2019 and March 2020. During their relationship the applicant would often stay at the complainant's residence which was a granny flat in Smithfield.
The jury, at the conclusion of a trial, returned verdicts of not guilty in respect of counts 1, 2 and 3 and guilty in respect of counts 4, 5 and 6.

The grounds of appeal

The applicant seeks leave to appeal on the following grounds:

“1. The verdicts of guilty on counts 4 and 5 are inconsistent with the acquittal on count 2.
2. The admission of evidence of the applicant's bad character, the failure to cross-examine the applicant about it, its use by the Crown Prosecutor in address, and the absence of direction about it resulted in a miscarriage of justice.
3. The failure to give a direction in accordance with s.95 of the Evidence Act resulted in a miscarriage of justice.”

As none of these grounds involves a question of law alone, leave to appeal is required: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
I have had the benefit of reading the reasons of Chen J in draft and agree with his Honour’s conclusions with respect to ground 1, largely for the reasons given by his Honour. I gratefully adopt his Honour’s summary of the counts and the evidence.
In addressing grounds 2 and 3, it is necessary to set out in some detail the way in which the trial was conducted and the jury directed because this background is germane to the determination of the question whether there was a miscarriage of justice as alleged in each of those grounds. What follows is not a complete summary of the evidence given. Rather, I have endeavoured to highlight the evidence which was relied on by Ms Lewer, who appeared for the applicant in this Court, as amounting to evidence of the applicant’s bad character and warranting a direction under s 95 of the Evidence Act 1995 (NSW) (an anti-tendency direction).

Pre-trial rulings and agreed facts

As the relationship between the applicant and the complainant had been tumultuous and had given rise to several Triple-0 calls to police before the conduct alleged in the counts, there was an issue about how to deal with evidence of the relationship between the parties other than as alleged in the counts. Further, for the purposes of impugning the complainant’s credit, the applicant wanted to rely on the circumstance that the complainant had, on 8 March 2020, signed a police statement saying that he had slapped her on that day, but signed a further police statement on 12 March 2020, saying that he had not done so. Ultimately, the parties resolved to agree on facts, which, pursuant to s 191(2)(b) of the Evidence Act, would have the effect of prohibiting evidence being adduced to contradict or qualify the facts, without leave.
The following table (which forms part of the agreed facts set out in a document marked Exhibit A in the Crown case) sets out incidents which were followed by Triple-0 calls made to police either by the applicant or the complainant:

Date

Incident Details

Action Taken

1. EVENT REFERENCE NUMBER E 72898630

9 February 2020

Ngo and [the complainant] were cooking dinner when an argument ensued. During the argument [the complainant] was holding a butter knife. Ngo told [the complainant] to leave which she did. [The complainant] then regained entry through a bedroom window, [the complainant] called police and left the premises to wait for the police to arrive. Police arrived and Ngo told police [the complainant] was holding a butter knife but did not threaten or intimidate.

Police spoke to Ngo and found no offences occurred. Police happy to let both parties remain in the premises.

2. EVENT REFERENCE NUMBER E 73485344

24 February 2020

Argument over money ensued in the kitchen of the residence. Ngo called police and told them that he and [the complainant] were having an argument, that [the complainant] had become violent and that he had pinned [the complainant] down in an attempt to stop her hitting him. [The complainant] attempted to make Ngo leave by pushing with no success. Ngo wanted to collect some belongings.

[The complainant] contacted her Family and Community Service worker and said Ngo gained access and slapped, grabbed and shoved her and that she locked herself in and he was trying to break in. Police arrived with Ngo still outside the property and [the complainant] still inside arguing.

Police obtained details from both parties and were unable to determine who was at fault. Both parties refused to provide statements and [the complainant] only wanted Ngo to leave the premises. Ngo was moved on from the location and no further action taken.

3. EVENT REFERENCE NUMBER E 73809707

25 February 2020

At about 9:30pm Ngo attended [the complainant]’s residence to collect some belongings. Ngo knocked on the door with no answer. [The complainant] was with her daughter in the back room and did not hear the knocks. Ngo entered the property through a window because he did not have a key. [The complainant] upon leaving the back room saw Ngo and became frightened. [The complainant] called 000.

Police attended the residence. Enquired as to damage, threats or violence – [the complainant] confirmed none of the above occurred. Police spoke to Ngo who told them he wanted to get his things and discuss money. Ngo advised that he had climbed through the window a number of times because he did not have a key. Police left without incident.

4. EVENT REFERENCE NUMBER E 73569111

4 March 2020

Verbal argument between Ngo and [the complainant] about Ngo’s trust issues. [The complainant] stated that she only wished to have a friendship relationship, but Ngo was adamant about maintaining their previously intimate relationship. [The complainant] contacted 000 and Ngo left without incident.

Police attended the residence and ascertained the argument was only verbal in nature and no offences were committed. [The complainant] informed police that she no longer wanted Ngo to reside there. Police said they would speak to Ngo and inform him. Police spoke to Ngo in regard to the above and Ngo said he would not return to the address “if I’m not wanted”.

The agreed facts also included the following:

“5.   The accused was charged with domestic violence offences against the complainant on 8 March 2020 and an Apprehended Domestic Violence Order was put in place on 13 March 2020. The conditions of that order were:
a.   That the accused must not assault, threaten, stalk, harass or intimidate the complainant or intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the complainant;
b.    That the accused must not approach the complainant or contact her in any way, unless the contact is through a lawyer; and
c.    That the accused must not go within 100 metres of any place where the complainant lives, works or 38 Neville Street, Smithfield.

…
8. A record of calls made by the accused and complainant is included in Annexure A [which set out a total of 562 calls made between the applicant and the complainant during the period from 9 March 2020 until 18 April 2020].”

During the course of the trial, it was also agreed between the parties (in answer to a jury question) that the police had applied for the Apprehended Violence Order (AVO) on behalf of the complainant and that this was standard procedure in cases where there has been a domestic incident.
There was also pre-trial argument about the limits to be placed on cross-examination of the complainant and the circumstances in which the prosecutor could lead evidence of the applicant’s bad character (if the applicant gave evidence, which he did). The trial judge made the following rulings (to which there was no challenge):

the applicant’s trial counsel could cross-examine the complainant about having sex in his car when she went to his home to return his PlayStation, after the Apprehended Violence Order was put in place in March 2020, as well as other occasions on which they were intimate between 8 March 2020 and 16 April 2020;

if the applicant’s trial counsel adduced evidence about the complainant’s drug-taking (to establish the subject matter of the arguments between the complainant and the applicant), the prosecution may be permitted to adduce evidence of the applicant’s bad character, if he gave evidence; and

the applicant’s trial counsel could not adduce evidence about the complainant being a sex worker although she was permitted to suggest to the complainant in cross-examination that they argued because he had suspicions about infidelity.

The Crown case

The complainant’s evidence

The complainant was the principal witness in the Crown case. The only other prosecution witnesses were two police officers. The complainant gave her evidence remotely and was, at times, difficult to understand. Although her English was good, it was her second language. She did not give evidence through an interpreter. This led to some uncertainty about what she had actually said in places where the court reporter had noted “not transcribable” on the transcript. It also led to directions being given to the jury based on the agreement of counsel as to what had been said or what might have been said (which are referred to below). This is relevant to the applicant’s unsuccessful application for the jury to be discharged (which is not the subject of a ground of appeal) as well as to the evidence of the applicant’s bad character, which are central to grounds 2 and 3.
Further, the complainant’s answers were not always responsive, particularly during cross-examination. Thus, although it was accepted that she had been instructed by the prosecutor not to mention certain matters, she did not abide by those instructions.

The relationship between the applicant and the complainant up to February 2020

The complainant was the first witness in the Crown case and was called on the second day of the trial, 17 November 2021. The complainant gave evidence that she met the applicant in about January 2019 and started to have a relationship with him in October 2019. At that time, the applicant arranged for the complainant to work at his sister’s restaurant in Camden. She said that the relationship ended in February 2020. The following exchange is recorded as having taken place:

“Q. Why were you ending the relationship with [the applicant]?
A. He is not worth it and too many fighting - so many affair that he having with another girl. And assaulting me at the restaurant sometimes, as well so.
Q. So, you said insulting you at the restaurant. What was he doing?
A. He keep pinching my - my - my skin and keep swearing at me and telling off in front of the customer and other worker.”
[Emphasis added.]

The complainant said that, although they had broken up, the applicant still came around to see her. She said that sometimes he would be “normal” and at other times he was “kind of, aggressive and he’d, like, just want to get back with me, but then, I still tell him to give me a time and I didn’t mean to want to go back to the relationship”.

The events of 8 March 2020 (which led to the AVO)

The complainant was asked whether the police came around to her granny flat on various occasions in February and March 2020 (which were the subject of Exhibit A). When asked what happened on 8 March 2020, she said that the applicant took her phone as he did not want her to call the police, and she tried to grab it back. The applicant started pushing her and punching. She accidentally scratched his leg, and he tried to slap her face, and there was some “fooling around”, which left her with a red mark and a scab on her face. She took the applicant’s phone and ran out and he followed. They eventually returned to the flat and calmed down, and the applicant left. She confirmed the applicant had slapped her face twice during the argument and that she had spoken to police and gave them a statement about what had happened. She said that in the ensuing days, she felt sorry for him because he had told her that if he was charged he would go to gaol. She encouraged him to go to the police with her and said that she would withdraw what she had said about him slapping her. The complainant agreed that she had retracted what she had said in her statement of 8 March 2020 that the applicant had slapped her on 8 March 2020.
In the absence of the jury, the complainant was given a certificate pursuant to s 128 of the Evidence Act before she was asked whether her retraction was true. She said that the retraction was not true but that she had made it because she wanted to give the applicant a second chance.
Shortly after evidence was given about the 8 March 2020 incident and the associated AVO, the trial judge gave the jury an anti-tendency direction as follows:

“… The granting of such an [AVO] is a standard procedure when there is an allegation made by a party against another of a domestically violent nature. The direction I give you is as follows. You are not to reason that because such an order was made against the accused, that he is guilty of any of the offences alleged in the indictment.
… You cannot act on the basis that the accused is likely to have committed the offences charged, because you’ve heard that an [AVO] was made against him. That is not the reason the evidence was placed before you…
The evidence about that has a limited purpose, namely, to explain the background to the relationship between the accused and the complainant. The fact that an apprehended domestic violence order was put in place on 13 March 2020 cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges on the indictment have been proved beyond reasonable doubt.”

Postulated reference in the complainant’s evidence to the applicant being on drugs

After the luncheon adjournment, the applicant’s trial counsel, in the absence of the jury, raised that the complainant had said in one of her answers that the applicant was “on drugs”. The prosecutor confirmed that she had heard the complainant say that the applicant “looked like he was on drugs”. The trial judge identified the need for a direction but said that he was having trouble understanding what the complainant was saying and would like to look at the transcripts. The transcript does not record that either of these pieces of alleged evidence was actually said, although a direction was ultimately given by the trial judge (in the form agreed by the parties) to address the possibility that one or more of the jurors had heard what counsel thought had been said.

The complainant’s evidence about the applicant referring to her as a prostitute

When the jury returned, the complainant continued to give evidence about the counts, in the course of which she said that the applicant had told her that she was a prostitute and she had said that she told him that she was not a prostitute.

The complainant’s evidence about the applicant attending Green Valley Police Station

The complainant also said, on three occasions, that the applicant left her place and went to the Green Valley Police Station (this was relevant to the applicant’s unsuccessful application to discharge the jury, which will be referred to below).

The jury’s request for the transcript

On the morning of the third day, before the cross-examination of the complainant commenced, the jury sent a note asking for the transcript of the complainant’s evidence. The jury’s request for a transcript was deferred until the parties could agree on certain issues relating to the transcript.

The complainant’s cross-examination

The applicant’s trial counsel began her cross-examination of the complainant in the morning of the third day of the trial, 18 November 2021.

Cross-examination of the complainant about the incident on 8 March 2020

The complainant was asked about the incident on 8 March 2020 when the applicant took her phone. She was asked whether she got her phone back from him, to which she gave a very unresponsive answer, which included the following:

“A. However, because I have to talk on my phone because I need to use a phone for emergency, escaping - if he done something wrong, because he done a lot of physically hurting me in the bus, which is before 8 March, where the police were involved so many times. I didn’t want to put up with this. And because I was so nice, I - not - so - the - the people I knew, using it against me, because he knew that. That is my business, but he chew my finger. And he used to call me so many times. And that’s the reason why I moved on and I stand up and I report every single act done to my - in my - to myself and to my daughter. My daughter's..(not transcribable)..so much when he keeps swearing, yelling, screaming. And myself. So today is a best chance for me to tell every - his behaviour. And to‑‑
Q. I'll just move on.”
[Emphasis added.]

Cross-examination about the car incident on 17 March 2020

The applicant’s trial counsel cross-examined the complainant by reference to the phone calls set out in the annexure to Exhibit A, which led the complainant to agree that by about 17 March 2020, she and the applicant were “reconciling”. She was questioned about an occasion when she drove to the applicant’s parents’ place and parked around the corner “after he was released from Fairfield Court” (which related to the AVO made on 8 March 2020). She was intending to lend him her PlayStation. The complainant said that the applicant came to her car to pick up the PlayStation and brought her food. The following exchange occurred:

“Q. You have sex with him in the backseat of your car.
A. He forced me to, he said..(not transcribable)..
Q. I put it to you, ma’am, he never forced you--
A. He--
Q. --you had consensual sex with him.
A. No, it was at that day I just really going there and give him the PlayStation, but however, he tried to make me do that..(not transcribable)..but that's the reason why I didn't want to sex with him, but I did admit I had sex with him in the back of car.
Q. I'm saying to you it was consensual sex, what do you say?
A. It’s not consensual sex.
Q. You never told the police about this, did you?
A. I..(not transcribable)..so I didn't want to mention that.
Q. Now, from that point on, you and the accused spent more time in each other’s company, do you agree with that?
A. I agree.”
[Emphasis added]

The applicant’s trial counsel continued to take the complainant through the phone calls set out in the table annexed to Exhibit A. The complainant agreed that she and the applicant were in regular contact with each other between 8 March 2020 and 16 April 2020.

Discussion in the absence of the jury about a reference to the applicant drugging the complainant

Before the luncheon adjournment on 18 November 2021, in the absence of the jury, the applicant’s trial counsel raised the issue of the complainant having said that the applicant drugged her, although she had not heard it herself (it had apparently been confirmed by others at the bar table although the transcript does not reveal that it was actually said). The trial judge confirmed that he had not heard it either but that, once the transcript was prepared, they could review it to consider how to address it.

Cross-examination of the complainant about her delay in reporting the conduct the subject of counts 1-6

When the cross-examination of the complainant resumed, the applicant’s trial counsel put to her that she could have reported the applicant to police after any of the events the subject of the counts (because he would have been in breach of the AVO) but that she did not and that she did not report the conduct the subject of the counts until August 2020. The complainant agreed that this was the case but said, in effect, that she eventually had to say something to move on from the events. In further cross-examination about this occasion, the complainant said that she had discovered that the applicant was telling all his friends that the complainant was “cheating” on him because she was a prostitute.

Further cross-examination about count 5 (15 April 2020)

The applicant’s trial counsel cross-examined the complainant to the effect that after he had allegedly forced her to have sex with him on 15 April 2020, the first thing she had done was to check his phone to ascertain whether he was cheating on her. The following exchange ensued:

“Q. What I'm saying to you, ma'am, is that after you’d had sex with him, you believe that he was cheating on you, and that's what made you upset about having just had sex with him.
A. No. If I’m – if I’m do upset about he have sex with me and then he cheat on me. What I do, I wouldn’t call the police right away to arrest him. That's not – that’s how the normal woman would do. But because I believe absolutely I need to leave the relationship peaceful and quietly without him chasing me down. So that's the reason why I just wanted to control so slowly and silently outside without being put into the trouble. Because at the end I still care for him, but he never care for me. And that's one of the reasons why I got so disappointed. And yeah.
Q. Ma’am, it's the case, isn't it, that you felt that he was using you for sex? That's what you felt.
A. That’s what I feel. That’s exactly how he using me. From the top to the bottom, from the beginning to the end, he always cheating me, that a fact. That my decision, that’s not my feeling.”

The issue whether the complainant had mentioned that the applicant was in custody (raised in the absence of the jury)

Following this evidence, there was a short adjournment, in the course of which the applicant’s trial counsel said:

“Just before the jury come in, there was another piece of information given by the complainant where she said my client would be released from custody soon. I think, if I may, your Honour, I’ll just add to the list of issues. I just wanted to mention it. I’ve mentioned it to the Crown.”

The trial judge and the prosecutor confirmed that neither had heard anything of that nature said. The applicant’s trial counsel said that she and “the solicitors” had heard it. The transcript does not record that any such statement was made, although there was a reference to the applicant being released from Fairfield Local Court, which I take to be a reference to 8 March 2020 and which was contained in the applicant’s trial counsel’s question.

Resumption of cross-examination of the complainant about count 5 (15 April 2020)

After the short adjournment, the applicant’s trial counsel continued questioning the complainant about her conduct after the alleged sexual assault on 15 April 2020 (her taking his phone, checking it for evidence of infidelity and taking photos of him begging for the return of his phone). The complainant agreed that the applicant left her granny flat at about 9pm on 15 April 2020 and that she retained his phone.

Cross-examination of the complainant about count 6 (16 April 2020)

She said that on 16 April 2020, the applicant returned with food from his mother and some plants. She was washing dishes in the kitchen. He asked for his phone and she gave it to him. She said that she asked him to leave but he did not leave because he wanted to stay and talk. When she asked him again to leave, he “make [her] house become a mess”. The complainant called her aunt and asked her to call the police for her. The applicant then said that he would leave and that there was no need to call the police.
Subsequently, the applicant returned and asked the complainant why she had changed the SIM card in his phone. He was at that time “very aggressive”. The following exchange ensued:

“Q. Then he got the original SIM card that you gave him, and he swapped it back again. Do you agree or disagree?
A. For that moment, I can’t recall the memory for that reason because I was in fear, both extremely shocking and in fear, because I don't know what the next moment of my life would be.
Q. I’ll put it to you, ma’am, he never threatened to kill you at any stage of your relationship. Do you agree or disagree?
A. I disagree.
Q. I'm just saying to you, your taking of the SIM card, that's you trying to gather more evidence about his cheating. Do you agree or disagree?
A. I disagree.
Q. After, I say, Mr Ngo got his SIM card back, he cut up some fruit. Do you agree with that?
A. Yep. But also, first of all, he means for me to calm down.
Q. You were lying down. And I believe that fruit was like guava with some chilli on it. Does that sound right to you?
A. That's right.”
[Emphasis added.]

Cross-examination of the complainant about the police visit on 16 April 2020 (after count 6)

The applicant’s trial counsel asked the complainant about the timing of the police visit in the following exchange:

“Q. Anyway, then, all right. I just want you - do you recall that the police come and speak to you around about - I think it's about 2.15 to 2.30?
A. No, no, no, no. Not the police come talk to me. The police come to his place to do the checking, I think, because he's on the high risk offender thing. High risk offender - yeah. So that's why they come to his place. And then his dad calling him to go home and - yeah. And I'm not sure about that because I overheard the conversation between him and his dad over the phone. So I don't - I don't know exactly what happened on the phone. I only what exactly he respond back to the phone receiver into the‑‑
Q. All right. Thank you. All right. Just stop you there. …”
[Emphasis added.]

Cross-examination of the complainant about the photograph taken on 13 April 2020 (between count 2 and count 3)

The complainant was also cross-examined about the photograph which the applicant had taken of her which was marked Exhibit 3. The following exchange occurred:

“Q. What I'm saying to you is, in this photo, you appear to be at ease, in your room, with the accused. Do you agree or disagree?
A. I disagree, in one sentence, which is, I didn't know [the applicant] was in my room on the 13th of April. When I turned around, I was shocked, because this part of the room is - was having the door on my left-hand side, when I do decoration, and I'm been doing from the top, you just can’t see that. He took the photo of me, without my face, which is mean, he didn’t camera out and took a photo of me when I’m doing something else. That’s mean, I wasn’t consent, and then that’s mean, he breach of my privacy. I can show you for this reason, and I would like further statement, from now on, to the police, for another allegation, that he done it to myself and my daughter…(not transcribable)..
Q. I’ll just move on. …”
[Emphasis added.]

Further evidence given in the complainant’s cross-examination of assaults on 29 March 2020

The complainant was also cross-examined about text messages she had sent to the applicant on 15 March 2020 and 29 March 2020 in which she accused him of infidelity. The following exchange ensued:

“Q. Just turning over the page to 29 March 2020. ‘Why you treat me so bad? You cheated on me and even falsely accused me’, and then, ‘Stop, enough, Sang, don't make me more anxious about your behaviour.’ Then the message is repeated, again, at the bottom. So, you and the accused were still having trust issues as of 29 March 2020. Do you agree or disagree?
A. I disagree for the trust. Because I asking him, ‘Why you treat me so bad?’ It’s about he hitting me every time we have argument, and the hitting part is the principle..(not transcribable)..that on the 29th of March, and that’s the day he actually, first time ever, forced me have sex with him, which is I never bring it up until the statement.”
[Emphasis added.]

The complainant agreed that the allegation of “hitting” was not in her police statement but denied that she was “making it up in [her] evidence”.

The complainant’s evidence in cross-examination that the applicant had taken money from her and her daughter and that he had taken her car

In an answer to a subsequent question, the complainant said that she was not only upset with the applicant because he was “cheating on [her]”, but also because he “took [the complainant’s and her daughter’s] money”. When it was put to her that this was not in her police statement, she said that she had told the “police everything” although she would have taken “years” to tell them what had happened on “every day” of their relationship. Subsequently, the complainant said that she rang the applicant because he had taken her car. She agreed that this allegation was not in her police statement.

Re-examination of the complainant

In re-examination, the complainant confirmed that when she had said that the applicant had slapped her on 8 March 2020 she was telling the truth and that she had made another statement on 12 March 2020 saying that he had not done so because she wanted to give the applicant a second chance. She said that the evidence she had given at the Fairfield Local Court on 17 November 2020 that he had slapped her was true.

The applicant’s application for discharge of the jury

At the end of her cross-examination of the complainant, and in the absence of the jury, the applicant’s trial counsel foreshadowed an application to discharge the jury in the following terms:

“If this matter ends up going somewhere else, which may or may not happen, I would be very concerned that I hadn’t made an application because I am very concerned that the jury may think that my client is a high‑risk domestic violence offender. He is not, as I understand it, so there’s that issue. She continually comes up with other allegations, especially today. That is also problematic, and now she’s said that ‘He’s done something to me and my daughter which I haven’t told anyone about,’ so we’ve got this continual value adding to her evidence.
As I understand it the Crown has spoken to the complainant and said to her that she’s not to mention certain things, in particular the drugs, the bail and the prostitution. Of course, that appears to have had no effect on the complainant. Having said all of that, my next concern is in regard to the complainant. It seems no matter what she is told she still gives evidence and says things against the accused which she’s been told not to say, as I’ve indicated earlier, and it’s my belief and possibly only my belief but she will continue to do this.”

Before hearing the application, the trial judge requested that the applicant’s trial counsel prepare a list of transcript references which formed the basis of the application.

The list of transcript references in support of the application for discharge

At the commencement of the fifth day of the trial (22 November 2021), the applicant’s trial counsel went through her “list” of transcript references to support her application (Voir Dire Exhibit 11).
The list comprised the following evidence given by the complainant:

the applicant assaulted her by pinching her at the restaurant;

the applicant called her a prostitute to her face and told others that she was a prostitute;

the applicant had to go to Green Valley Police Station;

the applicant had sexual intercourse with her in the back of her car after she delivered the PlayStation to him;

none of the sexual activity he had with her was consensual except if he drugged her (this was not recorded on the transcript but counsel agreed that it might have been said);

she did not forgive him for anything he had done to herself or her daughter;

he had, at some point, been released from custody (this was not located in the transcript but the parties accepted that it was possible that it was said);

he took her SIM card (this did not feature in the submissions);

the police came to check on the applicant because he was a high-risk offender;

he hit her every time they had an argument and he first had non-consensual sex with her on 29 March 2020;

he took money from the complainant and her daughter to pay the rent, took her sunglasses to sell them and borrowed her ring; and

he (temporarily) took her car.

Many of these matters arose from what those present thought they had heard which required a comparison to be made with what was recorded on the transcript. Parts of the tape of the proceedings were replayed in order to obtain consensus on what was actually said. The trial judge also invited the response of the applicant’s trial counsel and the prosecutor to a proposed direction about the reference to the applicant being in custody.
The trial judge confirmed that the prosecutor joined in the applicant’s application for discharge of the jury (although the prosecutor had initially indicated that she did not propose to make submissions). The trial judge refused the application for discharge. Having discussed the directions which could be given to remedy the issues raised by the applicant’s trial counsel, his Honour confirmed that there were only two matters (the applicant’s custody and the reference to drugs) that required a direction “at this stage”, with which the applicant’s trial counsel agreed.
After the application for discharge had been refused, the applicant’s trial counsel also referred to the reference to the applicant being a “high-risk offender” but said that that could be addressed by asking one of the police officers who was to be called in the prosecution case to confirm that he was not on such a list.
When the jury returned, the trial judge gave a detailed and firm direction that, even if the words “just look like he on drugs at the time” were said by the complainant in a portion of the transcript which is marked “untranscribable”, the jury should completely ignore it as there was no evidence that the applicant was on drugs.
The trial judge also directed the jury, in similarly detailed and firm terms, that although they may not have heard it and it does not appear in the transcript, both counsel believe that the complainant may have said that the applicant was in custody. The trial judge directed them to disregard the fact that he was denied bail because it was not relevant to the issues which the jury was required to decide.

The balance of the Crown case

The prosecutor called Senior Constable Spalding from the Fairfield Police Station who confirmed that the applicant had been arrested on 16 April 2020 and taken to the police station where he participated in an Electronically Recorded Interview of Suspected Person (ERISP). Constable Tanisha Riley confirmed in her evidence that the applicant was not on the High Risk Offenders List. The ERISP was played to the jury in the course of her evidence. She was cross-examined briefly about the dates on which she spoke to the complainant, being 17 June 2020 and 4 August 2020.

The defence case

The defence case began at about 3.30pm on 22 November 2021 (the fifth day of the trial). The applicant’s trial counsel did not open the defence case (although she had taken the opportunity after the Crown’s opening on the first day to inform the jury what was in dispute). The applicant gave evidence. His evidence included denials of the masturbation charges and that all the sex between them was consensual. He denied that he ever referred to the complainant as a prostitute, either when he was having sex with the complainant or otherwise.
The prosecutor cross-examined the applicant but did not cross-examine him about the “additional” matters about which the complainant gave evidence (this formed part of ground 2).
On the morning of 23 November 2021 (the sixth day of the trial), the trial judge delivered oral reasons for refusing the discharge application, following which there was a discussion about what directions ought be given. On that day, the applicant’s evidence concluded and the Crown gave its final address (see below).

The trial judge’s reasons for refusing to discharge the jury

The trial judge noted that the Crown did not oppose the application.
Of the first matter (that the applicant looked as if he was on drugs), the trial judge said that such words were not discernible on the transcript but that a “firm direction, suitably crafted, to the jury would overcome and remedy the apprehended impact of any prejudice to the accused and ensure that he received a fair trial”.
Of the second matter (that the applicant told the complainant that she was a prostitute), the trial judge said:

“There is little dispute that both the accused and the complainant at times lost their tempers when their relationship began to deteriorate and they argued. The fact that the accused used intemperate language and called the complainant a prostitute when she accused him of being unfaithful on her evidence would not mean he could not receive a fair trial. This was a matter for the jury. If necessary, a suitable direction could be given to address any concerns this may hold at a suitable stage during the trial.”

Of the third matter (that the applicant had to go to Green Valley Police Station) or the fourth matter (that the sex between the applicant and the complainant in her car was non-consensual), his Honour said that these were matters for the jury and provided no justification for the jury to be discharged.
Of the fifth matter (the suggestion that the complainant had said that after 8 March 2020, all sexual activity was non-consensual “except when he’s drugging me”), the trial judge considered that this was a matter for the jury (which would appear to be covered by the firm direction which his Honour proposed to give that there was no evidence of anyone using drugs).
Of the sixth matter (the possibility that there had been a reference to the applicant being in custody, notwithstanding that there was no record on the transcript of that being said), the trial judge considered that “any prejudice to the accused could be cured by a suitable direction”.
Of the seventh matter (the reference to the applicant being a high-risk offender), the trial judge said that any concern about prejudice to the applicant was cured by Constable Riley’s evidence that the applicant was not on the High Risk Offenders List. His Honour said further:

“Whilst I consider it would be obvious to the jury that the complainant mentioned the ‘high-risk offender thing’ simply because Constable Riley was part of that police team rather than it being the case the accused was a high-risk offender, I would give to consideration to giving direction in my summing up if it was necessary.”

Of the eighth matter (that the complainant said that the applicant hit her and that the applicant first forced her to have sex with him on 29 March 2020), his Honour referred to the complainant’s acceptance that “this was the first time she had ever mentioned the accused hitting her and had made no reference to this in any of her police statements”. The trial judge noted that the applicant’s trial counsel did not submit that she was procedurally disadvantaged and considered that it was a “matter of fact for the jury to determine”.
Of the ninth matter (that the complainant accused the applicant of taking money from her and her daughter), the trial judge said:

“There has been little dispute that during a period of time during their relationship the complainant worked with the accused at a restaurant at Camden owned by the accused’s sister. There has been also little dispute that the money they earned from this work was pooled and held by him. It has been part of the defence case that he used the money to pay the rent and other living expenses when they were living together. On the other hand, the complainant maintained the accused did not pass onto her the wages that were properly due to her but kept them himself. [The applicant’s trial counsel] acknowledged that it was likely the complainant’s evidence about the accused taking money that was due to her and her daughter, as she asserted, was to be understood in this context. Accordingly, this is not a matter justifying a discharge of the jury. What direction, if at all, should be given to the jury can be considered at the close of all the evidence and after the accused has given evidence.”

Of the tenth matter (that the applicant took her sunglasses and sold them and borrowed her ring), the trial judge said:

“It is a factual matter for the jury whether they find the complainant asked the accused to sell her sunglasses or any other item to raise money, to quote her Facebook message, ‘on my behalf’, and to quote his response, ‘to pay the rent’, or whether he simply kept the money. It was not a ground to discharge the jury.”

In conclusion, the trial judge said:

“The principles that guide the exercise of a trial judge’s discretion whether to discharge a jury was set out in the High Court case of Crofts v TheQueen (1996) 186 CLR 427 at 440 to 441. In Miller v R (2015) 252 A Crim R 486 at 510 to 511 the Court set out the key considerations when deciding an application to discharge the jury.
The two matters which caused me concern were firstly reference by the complainant to the occasion when the accused came to her premises on 14 April 2020 and she said he ‘just looked like he on drugs on that time’ and secondly, reference by her to the accused being in custody. Neither of these matters was transcribed and there was a possibility that they were not such as to ‘have left vividly etched on the mind of the jury’: see Crofts at 441.
Acting on the assurance of both counsel that the complainant made these comments, I gave directions to the jury about these matters which I considered would overcome and remedy the apprehended impact of any prejudice to the accused and to ensure he received a fair trial. The combination of these two matters and the other matters raised by [the applicant’s trial counsel] in my view would not result in the accused receiving an unfair trial.
The other matters raised by [the applicant’s trial counsel] did not require, at that stage, the jury to be discharged or further directions to be given about those matters particularly in view of the fact that the accused would give evidence and have the opportunity to answer the various assertions made by the complainant.”

The Crown address

The Crown submitted that the complainant was a witness of truth and that it was understandable that she would retract her statement about the applicant slapping her in March 2020 because, at that time, she still loved him and did not want to get him into trouble for breaching the AVO.
Early in the Crown’s closing address, the prosecutor said:

“First, let's address the elephant in the room. There was no doubting that the relationship between the accused and [the complainant] was, at times, tumultuous. That is one thing that both the Crown and the accused agree on in this matter. There is a history set out before you in exhibit A which paints a less than rosy picture. There were numerous occasions when the police were called to [the complainant’s] premises after her and the accused had arguments, arguments which they both told usually stemmed from one thinking the other was cheating on them, or from issues with money. You can see from exhibit A that, often, the police took no action. They couldn't determine what party was at fault, or neither party, [the complainant] or the accused, wished to speak to the police
That is, members of the jury, until the events of April 2020. What happened between 11 and 16 April was not just another chapter in a rocky relationship, the Crown submits. It wasn't simply arguments over phones, money, cheating or jealousy. On those occasions, the accused sexually assaulted [the complainant]. He masturbated in front of her, and finally, he broke into her house and threatened to kill her if she called anyone. The Crown says that you would be satisfied of those offences on the indictment, and during this closing, I'll explain to you why that is.”
[Emphasis added.]

There was no reference in the Crown’s closing to drugs, the suggestion that the complainant was a prostitute (or that the applicant referred to her as one) or to his being in custody. Nor was there any reference to any of the seven matters relied on by the applicant in this Court in respect of grounds 2 or 3 (see below), except in so far they can be regarded as falling within the category of “arguments over phones, money, cheating or jealousy” emphasised in the passage extracted above. The Crown did not seek to rely on the parties’ turbulent relationship to support the counts on the indictment. Rather, the prosecutor drew a distinction between “arguments” about various topics and the conduct which comprised the six counts.
The only exception to this matter was the evidence about the events of 8 March 2020 which led to the AVO against the applicant. The Crown needed to address this because it was an important plank in the applicant’s case that the complainant was not worthy of credit as she had made a statement alleging that the applicant had slapped her and then made another statement retracting it. It was in this limited context that the Crown submitted that the complainant and applicant were in a “domestically violent relationship” and that the applicant “had difficulty taking no for an answer” in the following passage (which was relied on by the applicant in support of ground 2):

“[The complainant] maintained at the hearing, just as she did in her evidence before each of you, that what she said to police in that second statement was wrong. That the accused had slapped her. And she gave, the Crown submits, understandable reasons as to why she gave that second statement.
… [The complainant] admitted that she told a lie in that second statement to the police. She did not shy away from that. She said that it was the truth that the accused had slapped her, and she told you the reasons why she changed that statement.
…
You might think, members of the jury, either from previous life experience or by using your common sense, that that is completely consistent behaviour with someone in a domestically violent relationship, which we know [the applicant] was at that point in time.”
[Emphasis added to indicate the portion relied on by the applicant in support of ground 2.]

The defence address

The applicant’s case was, relevantly, that:

he had not been in any way violent towards the complainant and that all acts of sexual intercourse between them had been consensual; and

in so far as the complainant gave evidence of his violence towards her or his having sexual intercourse with her without her consent, she was lying or, at least, unreliable.

Consistently with his case, the defence closing raised issues about the complainant’s credibility. The following excerpt is sufficient to give a flavour of the address:

“The next part of the evidence is quite crucial. It involves [the complainant] and the accused contacting each other after he gets bail. Now, at this point, he is under the conditions of an AVO, which you know from exhibit A, they are not to contact [the complainant] and not to go to her place. Now, we know, and the accused has said, that he went there. He was there all the time. Did he contact her? Yes. You've got all those phone calls. Did she contact him? Yes, you've got all those phone calls. Anyway, he's under an AVO.
As you may recall - now, this is the interesting part of this - she has the protection of the AVO, yet they are talking. She's told you that she wants to forgive him. Now, of course, she has the protection of this AVO, yet what does she do? She goes to see him. She takes back the PlayStation 4 to him. He's brought her favourite food, which is the deep fried pork dim sims from Fairfield Heights, and they are in the back of their car. What do they do? Ladies and gentlemen, they have sex.
Now, of course, she didn't tell the police about that, because you might think at that point you might be starting to have some doubts about the veracity of what [the complainant] says, because number 1, she didn’t even have to go there; number 2, she does go there; number 3, she has sex and she says, ‘Yes, that's right,’ and then she says, ‘Oh, that was non-consensual.’ Well, ladies and gentlemen, she didn't tell the police about this. She gave a statement to the police about the sex on 4 August, because she doesn't include this one, because you see, she's gone to see him, him not coming to see her.
So, ladies and gentlemen, at this point, I suggest to you, you would have a doubt about the veracity of the relationship about [the complainant]. Now, of course, she's also give some other information a bit later on and she also tells us that there was another event on the - I believe it's 29 March, where she says that that was the first time that Mr Ngo had sex with her and she didn’t consent. Now, of course, you never heard that before.”

The summing up

The trial judge gave the summing up on 24 November 2021 (the seventh day of the trial). During the course of the summing up, his Honour arranged for the transcript (which had been agreed) of the complainant’s evidence to be given to the jury (in answer to their request, which, as noted above, had been made on 18 November 2021, the third day of the trial). After distributing the transcript to the jury, his Honour said:

“Now during [the complainant’s] evidence you may have heard her say that none of the sexual activity after 8 March was with consent followed by the words ‘except when he is drugging me’. The parties agree there is no evidence in this case that the accused drugged [the complainant]. I direct you in the strongest terms not to speculate. There is no reference to drugs in the case either for or against the accused. It is not relevant. It would be a complete miscarriage of justice for you to take into account this statement by [the complainant]. It would be unfair to both the Crown and to the defence. And it would not be in accordance with the law. I direct you to ignore this if you happen to have heard it. I have struck it out from the evidence. It does not appear in the transcripts that you have received.”

In the course of the summing up, the trial judge raised with counsel the Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 direction and also a direction that could be given regarding the complainant’s evidence, in light of s 294AA of the Criminal Procedure Act 1986 (NSW) (which prohibits a trial judge from directing a jury that complainants as a class are unreliable or that there is a danger of convicting on the uncorroborated evidence of any complainant). The trial judge also gave a direction that there may be good reasons why a complainant might delay in making a complaint about a sexual assault. Neither the applicant’s trial counsel nor the prosecutor suggested that there was any material error in the summing up which needed to be corrected or additional direction that needed to be given (this having been the subject of considerable discussion in advance of the summing up).

Of present significance, no anti-tendency direction was sought by the applicant’s trial counsel; nor was any such direction given (beyond the one that had been given in respect of the AVO, which is set out above).
The jury retired to consider its verdict at 3.15pm on 24 November 2021. The jury returned its verdict about 24 hours later at 3.32pm.

Grounds 2 and 3: admission of evidence of the applicant’s bad character and failure to give a direction in accordance with s 95 of the Evidence Act

Ms Lewer contended that grounds 2 and 3 were related and ought be addressed together. She submitted that a miscarriage of justice arose from the failure of the trial judge to provide an anti-tendency direction about seven different matters which she referred to as “additional bad character evidence”. The word “additional” was used to indicate evidence beyond that which was contained in Exhibit A.
The seven matters, each of which derived from the complainant’s evidence, were as follows:

the complainant ended her relationship with the applicant because of his “assaulting” her by “pinching” her at the restaurant where she worked for his sister;

the applicant became “aggressive” when she confronted him about his infidelity and swore at her and walked into her bedroom after she had told him to leave her house;

the applicant “done a lot of physically hurting me in the bus”, “chew[ed] [her] finger” and used to phone her “so many times”;

the applicant was charged with breaching the AVO which “[i]nvolved a lot of issue. So not only for the slap”;

the applicant had non-consensual sex with her in the back of her car on 17 March 2020 when she was visiting him to give him the PlayStation;

her denial that sex between them after 17 March 2020 was consensual; and

the suggestion that the complainant had said in her evidence that the applicant had drugged her.

I propose to address these seven matters in turn before considering the balance of Ms Lewer’s submissions.

1. the evidence that the applicant pinched the complainant at the restaurant where she was working for the applicant’s sister

As referred to above, this matter was relied on by the applicant’s trial counsel in support of her application to discharge the jury and was specifically included in the list of such matters. After refusing the application, the trial judge indicated that there were two directions which needed to be given (neither of which concerned this evidence). The applicant’s trial counsel can be taken to have considered whether a direction was required in respect of this evidence and decided against asking for one.
This is a significant matter in the present case because of the way the defence case was run. In effect, the defence case was that the complainant was unreliable or dishonest and fabricated false allegations of violence (including non-consensual sex) against the applicant to take revenge for his suspected infidelity.
An anti-tendency direction (“if you find that the applicant, for example, pinched the complainant at the restaurant, you must not use it to find that he was the kind of man who had a tendency to be violent against a woman who was his intimate partner”) would have tended to cut across the defence case because, if given, it specifically countenanced the possibility that the jury could find that he had, indeed, pinched her in the restaurant. The question whether the omission to seek an anti-tendency direction was the result of a deliberate forensic decision by the applicant’s trial counsel is considered further below.

2. the applicant was aggressive towards the complainant by swearing at her and going into her bedroom when she asked him to leave

This matter was not included on the applicant’s trial counsel’s list of matters on which she relied for a discharge of the jury. Although the complainant described the applicant as “aggressive”, she clarified this by indicating that he swore at her and followed her in the context of an argument about him having an affair.

3. the applicant had hurt her on the bus and chewed her finger as well as phoning her

It is difficult to discern precisely what was being alleged by the complainant. The applicant’s trial counsel (understandably) did not pursue this and moved to another topic.

4. the applicant had to go to Fairfield Local Court for breach of the AVO

Immediately after the complainant gave this evidence, the applicant’s trial counsel obtained her agreement to the facts that the hearing for alleged breach of the AVO (for slapping the complainant) took place at the Fairfield Local Court and that the applicant had been found not guilty. This further cross-examination effectively neutralised her evidence about the applicant having to go to Fairfield Local Court.

5. the applicant had non-consensual sex with the complainant in the back of her car on 17 March 2020

The applicant’s trial counsel put to the complainant in cross-examination that they had (consensual) sex in the back of her car on 17 March 2020 when she parked her car around the corner from his parents’ house to bring the PlayStation to him. The complainant agreed that they had sex but said that it was non-consensual. This was on the applicant’s trial counsel’s list of matters in support of discharge but no direction was sought in respect of it. I accept the Crown’s submission that an anti-tendency direction “would only have excited the very prejudice it sought to eliminate”.
Further, the applicant’s trial counsel must have envisaged that when she put the proposition to the complainant that she had sex with the applicant in the back of her car on 17 March 2020 (as an indication that they had reconciled, which was borne out by her bringing the PlayStation for him), there was a risk that the complainant might say that it was non-consensual. It can be inferred that the applicant’s trial counsel thought that the risk was worth taking and that, if the complainant said that she did not consent, the jury may reason that she was lying (which would assist the defence case that the complainant was ready to make false allegations about him when it suited her).

6. non-consensual sex on 17 March 2020

I accept the Crown’s submission that, fairly read, the complainant’s evidence was that, on 17 March 2020, the applicant had non-consensual sexual intercourse with her. Thus the fifth and sixth matters are, in effect, a single matter.

7. allegation that the applicant drugged the complainant

The suggestion that the applicant had drugged the complainant did not arise from anything that appeared on the transcript. It was raised as a possibility in the circumstances set out above. The trial judge gave a firm direction to the jury about it, the terms of which were agreed by the parties. The trial judge’s direction was lengthier than that agreed by the parties and gave greater weight to the directed prohibition.
Ms Lewer contended that the Crown’s failure to put the “bad character” evidence, which had emerged from the complainant’s evidence to the applicant in cross-examination or to address it in its closing submissions (which forms part of ground 2) caused a substantial miscarriage of justice.

Consideration

Grounds 2 and 3 raise two related issues: first, the admission of “bad character” evidence; and, second, whether an anti-tendency direction ought to have been given.

The requirement for leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)

The applicant’s trial counsel did not object to the evidence given by the complainant about the matters which Ms Lewer described in this Court as “bad character” evidence. Nor did she seek a direction that the complainant’s non-responsive answers which contained much of the evidence of which the applicant now complains be struck from the transcript or ignored by the jury (except for the matters which were the subject of the two specific directions). Further, the applicant’s trial counsel did not seek an anti-tendency direction, either before or after her application for discharge of the jury was rejected. Accordingly, as Ms Lewer accepted, leave is required to argue grounds 2 and 3 by reason of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules).

The relevance of “bad character” evidence

The agreed facts raised the applicant’s “bad character” in so far as they comprised evidence of complaints made by the complainant about him in calls she had made to the police and the AVO which was made in respect of him as a result of the complainant’s police statement that he slapped her on 8 March 2020. These matters formed a substantial part of the applicant’s case which was: the complainant was prepared to make allegations about the applicant’s conduct towards her (including violent conduct), which she was prepared to retract, thereby casting doubt on her veracity. In this sense, the allegation that the sex in the car on 17 March 2020 was non-consensual had the potential to assist the applicant’s case about the complainant’s preparedness to make false statements (including by way of recent invention) about him.

The ambit of the Crown case

The Crown case is delineated by the opening and closing addresses. In R vTangye (1997) 92 A Crim R 545, this Court (Hunt CJ at CL, McInerney and Sully JJ agreeing) said:

“The obligation of the Crown prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses.”

The “Crown case” is not the sum total of the evidence of all of the prosecution witnesses (some of whom may have been called by the prosecutor to fulfil its duty to the accused whether or not they assist the Crown case: Whitehorn v The Queen (1983) 152 CLR 657 at 674 (Dawson J); [1983] HCA 42). Thus, it does not follow from the fact that a prosecution witness has given evidence, particularly of something extrinsic (as occurred in the present case with the complainant’s evidence of unrelated discreditable conduct of the applicant) that the Crown is required to adopt the evidence as part of its case or that it is obliged to put propositions in accordance with such evidence to an accused in cross-examination, as it would be in accordance with the rule in Browne v Dunn (1893) 6 R 67 if those matters formed part of its case. For example, this Court held in Soames v R [2012] NSWCCA 188 at [109] (Latham J, Allsop P and Davies J agreeing) that a prosecutor was entitled to put submissions in closing address to the jury that a prosecution witness was unreliable. Further, a clear distinction is drawn in the summing up between the trial judge’s obligation to summarise the cases of the respective parties (which is required in every case: R v Meher [2004] NSWCCA 355 at [77] (Wood CJ at CL, Buddin and Shaw JJ agreeing)) and to summarise the evidence at the trial (which may not be required in every case: s 161(1) of the Criminal Procedure Act 1986 (NSW)).
These matters are sufficient to explain why the prosecutor had no obligation to put to the applicant in cross-examination those matters about which the complainant had given evidence which did not form part of the Crown case and why, accordingly, this aspect of ground 2 has not been made out. The Crown case was that the applicant did the acts which constituted each of the counts on the indictment. It was not part of the Crown case, for example, that the applicant had non-consensual sex with the complainant in the back of her car on 17 March 2020. Thus, the Crown was not obliged to refer to it in closing address.
Ms Lewer also relied, in support of ground 2, on the reference in the Crown closing to the complainant being in a “domestically violent relationship, which we know [she] was at that point in time” (which is highlighted in the extract from the Crown’s closing address set out above). It is plain from the context that the Crown was referring to the applicant slapping the complainant on 8 March 2020 and not to any of the other acts to which she referred in her evidence. The Crown was entitled to rely on that matter as background. I do not accept that this was tantamount to an invitation to the jury to engage in tendency reasoning generally. Further, the jury had already been given an anti-tendency direction in respect of the AVO, which arose out of what occurred on 8 March 2020.

The circumstances in which an anti-tendency evidence may be sought or is required

An “anti-tendency” direction is a direction to the jury that they are not to use certain evidence for a tendency purpose: that is, they are not to reason that because the accused did x, he or she is more likely to have done y or that the accused is the type of person who, having done x, would do y. The reason such a direction is given is that evidence can only be used for a tendency purpose when the criteria in s 97 of the Evidence Act have been met (the notice requirements and a ruling that the evidence has “significant probative value”). Section 95 prohibits use of otherwise relevant evidence for a prohibited purpose (such as a tendency purpose) if it has not been admitted for that purpose.
However, the need to prevent tendency reasoning does not require a direction in all cases. The question whether an anti-tendency direction ought be sought (or is required to be given), in relation to multiple counts of sexual offending or, of present relevance, in relation to discreditable conduct (including uncharged conduct) does not admit of a general answer. The reason for this is that much depends on the circumstances of the case and the defence to the charges. Indeed, there are some instances where it might be thought prejudicial to the accused’s case to give an anti-tendency direction.
In KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, McHugh J said, of present relevance, at [39]:

“If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate.”
[Emphasis added.]

Thus, careful consideration needs to be given to the accused’s case at trial in order to determine whether such a direction ought to have been given and to understand why it may not have been sought by the accused’s trial counsel or given by the trial judge in the absence of such a request.
In this respect, there are some analogies between the applicant’s case at trial and the case run at trial by the appellant in Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194 (Hamilton).
In Hamilton, the appellant’s case at trial was that the evidence given by his sons and his wife was concocted and was the result of a conspiracy between them because his sons had sided with his wife upon their separation. The High Court held that no anti-tendency direction was required in circumstances where the appellant’s case was that he had committed none of the offences and all of the evidence of the alleged offences was false. In these circumstances, an anti-tendency direction would have tended to undermine the appellant’s case (which provided, as set out in more detail below, an objective reason for the appellant not asking for one).
The High Court (Kiefel CJ, Keane and Steward JJ) said, of present relevance:

“[49] A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act. The adversarial system does justice through the diligent exertions of competent counsel in coming to grips with the special circumstances of the particular case.
…
[54] Within our system of justice, save for exceptional cases, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v R:
‘[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice’,

their Honours went on to say:
‘The absence of an application for a direction may … tend against finding that that risk was present.’
[55] The majority of the Court of Criminal Appeal were right to conclude that the failure of the appellant’s counsel at trial to seek an anti-tendency direction was a deliberate decision based on the circumstance ‘that he did not consider that such a direction was necessary’ to ensure a fair trial of the appellant. Indeed, this is clearly the better view.
[56] There is no reason to doubt the competence of defence counsel. Indeed, it may be said that he conducted his client’s case with considerable success. He resisted, successfully, the Crown’s tendency application. And, as has been seen, in the course of the trial judge’s summing-up, when defence counsel was afforded the opportunity to consider whether further directions were required, he did not seek an anti-tendency direction in respect of the counts on the indictment but rather pressed — again successfully — his application for the Murray direction, which was ultimately given by the trial judge. In these circumstances, the suggestion that defence counsel failed to seek an anti-tendency direction as a result of oversight on his part is fanciful.”
[Footnotes omitted.]

Whether an anti-tendency direction was required in the present case for bad character evidence beyond the events of 8 March 2020

In the present case, the Crown case depended on the credibility and reliability of the complainant as to the matters charged. The Crown was scrupulous to put to one side extrinsic matters such as those listed above, although they were referred to at the outset of the Crown’s closing address for the purposes of putting them to one side. This approach explains why the Crown did not cross-examine the applicant about these extrinsic matters and why no complaint could legitimately be made by the applicant that it did not do so (as appears in the wording of ground 2). The Crown case, its examination of the complainant, its cross-examination of the applicant, its closing and the trial judge’s summing up (to borrow the words from [49] of Hamilton) “invited the jury to follow an orthodox path of reasoning to conviction, which made the risk that the jury might instead detour into tendency reasoning distinctly remote.”
The applicant’s case at trial was that the jury ought not believe the complainant because she was a person who tended to fabricate false allegations about him, including concerning sexual violence. The defence case drew some support from her allegation that he had slapped her on 8 March 2020, her signed police statement to that effect, and her subsequent retraction in a later statement, which led to the applicant being found not guilty of slapping her. It potentially gained further support from her additional allegations of violence or sexual violence (that he pinched her in the restaurant, that he had had non-consensual sex with her in the car on 17 March 2020 and that he hit her on 29 March 2020) each of which was made for the first time in cross-examination, no prior mention of them having been made to police.

Consideration and disposition

The applicant’s argument involves three steps – being: (a) first, the allegations of sexual misconduct made by the complainant related to two sequences of events – the first on 11 or 12 April 2020 (count 1) and the second on 15 April 2020 (count 3); (b) secondly, the applicant’s case at trial was that he disputed that he performed a “sexual act towards the victim” (what was described as the ‘sexual misconduct’) and, in connection with the offences of sexual assault, the applicant agreed that the acts occurred, but said that the victim had consented to them; and (c) thirdly, the complainant’s “evidence for counts 4 and 5 was the same as count 2”, and for present purposes both sequences of events were “identical in nature”, and it relied upon acceptance of the complainant as truthful and reliable (applicant’s submissions at [70](d) and (f)).
The first and second steps may be accepted: the first reflects the offences on the indictment, and the second reflected the case the applicant ran at trial. The third step was the focus of the applicant’s argument. Put simply, the applicant’s essential argument was that the logic of the acquittal on count 2 was required to be carried forward in connection with counts 4 and 5.
The applicant sought to demonstrate the offending conduct in connection with count 2 was indistinguishable from counts 4 and 5, and sought to compare the evidence between the counts: it was submitted, having undertaken that exercise, that the versions were “identical events in nature”, and there was “no distinct difference in the strength of the evidence given by the complainant in relation to each count” (applicant’s submissions at [77]-[78]). It was further argued that as the complainant gave evidence that, upon multiple occasions, she expressed to the applicant that she was not consenting, the jury must have found that evidence to be untrue or unreliable. Given that the applicant was acquitted on count 2, it was submitted that the rejection of the complainant’s evidence as to the absence of consent, and her vocal expression to that effect, could not be reconciled against counts 4 and 5 (applicant’s submissions at [98] and [100]).
The applicant ultimately submitted that a verdict of not guilty in connection with count 2 necessarily reflected the jury’s rejection of the complainant’s account on the issue of consent – or a rejection of the complainant’s account that those events occurred – with the consequence that there was “no other feature of the case that made it reasonable for the jury to reason that the complainant was accurate and reliable around the circumstances of the second sequence of events (counts 3, 4 and 5)” (applicant’s submissions at [104]). Thus, the critical fact relied upon by the applicant, said to indicate error, is that count 2 and counts 4 and 5 both depended upon the jury accepting the evidence of the complainant.
I do not accept the applicant’s submissions: in my view, the applicant has failed to demonstrate factual inconsistency between the verdict on count 2 and the verdicts on counts 4 and 5. That is for the following reasons.
First, it is important to emphasise that, where an indictment contains multiple counts, the jury will be directed to give separate consideration to each count and this direction will “often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (‘MFA’). Those directions were given in this case by the trial judge. It follows that it is generally open for a jury to accept all, or part of, the evidence of the complainant. It is not the law that a “jury must either accept or reject the lot”: MFA at [89].
Secondly, in the case of a sexual offence, 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” by the jury: MFA at [34]. To the extent that the applicant’s submissions were, in effect, that a consequence of the verdict of not guilty on count 2 would indicate that the complainant was found to be untruthful or unreliable, and invited this Court to assess the reasonableness of the verdicts on the basis that “the complainant is a person of damaged credibility”, then that submission reflects a view that is “erroneous”: MFA at [35]; Booth v R [2022] NSWCCA 113 at [36].
Thirdly, accepting the starting point to be whether there existed any rational explanation for the acquittals – not the convictions – other than doubts about the complainant’s credibility (R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130]), in my view, there exists a clear and rational basis for the differing verdicts in relation to count 2 and counts 4 and 5 – namely, Exhibit 3. I will explain this further.
It is to be remembered that count 2 involved the offence that the applicant sexually assaulted the complainant – by penile/vaginal intercourse – on 11 or 12 April 2020, and counts 4 and 5 involved the offence that the applicant sexually assaulted the complainant – by digital penetration and thereafter penile/vaginal intercourse – on 15 April 2020.
In the interval between these two offences, on 13 April 2020, the applicant took a photograph of the complainant inside her flat, whilst she was wearing a T-shirt and underpants (or boxer shorts). Considerable emphasis was placed upon this evidence, and what it demonstrated, by the applicant at trial. The applicant’s trial counsel made the following submissions in connection with Exhibit 3 in her closing address to the jury:

Anyway, this picture, ladies and gentlemen, often a picture speaks a thousand words. This picture is of [the complainant] in her comfortable clothes – and she says she had T-shirt (sic) and her boxer shorts – but this is after she alleges that the accused forced her to have penile-vaginal sex and did the masturbation in front of her. You might think that her in this shot in his presence – ladies and gentlemen, you’d have some doubt about that. Is this how a person who says that she’s been forced to have sex with somebody – is this how you would expect them to behave? Ladies and gentlemen, what I’m saying to you is ask you to consider this, and it’s a matter for you, that she was comfortable in his behaviour, that this sex that was had on the 11^th or the 12^th was consensual and the masturbation didn’t happen. Anyway, that’s Exhibit 3. Now, as I said, I’m submitting to you that the intimate relationship was still ongoing, and you would have reasonable doubt about her assertions about the masturbation and the forced sex.

The importance of that evidence, to the applicant’s case at trial on counts 1 and 2, was covered in the summing up that the trial judge gave to the jury, which was in the following terms:

Another matter [the applicant’s counsel] highlighted was the significance she suggested to you the photograph of [the complainant] taken by the [applicant] on 13 April 2020 in her underpants and T-shirt in the bedroom. Bear in mind that the allegations in this Court against the [applicant] are around that time, the significance of this, [the applicant’s counsel] submitted, was that you would glean from the photograph that [the complainant] was acting comfortably and provocatively in his presence being dressed in the way that she was dressed.

At trial, the applicant thus argued that Exhibit 3 – which the applicant’s trial counsel described as “absolutely crucial” – was inconsistent with the complainant’s evidence that she had been sexually assaulted by the applicant (count 2). Specifically, it was submitted that it was demonstrative of the complainant behaving in a manner that was inconsistent with the way in which one might expect somebody to act after being sexually assaulted, as alleged: it was said to be supportive of the complainant being “comfortable” in the presence of the applicant – in fact, dressed provocatively – and it was also suggested to be supportive of the applicant’s evidence that there was an ongoing “intimate relationship” as at 13 April 2020.
Consistent with the emphasis placed upon Exhibit 3 by the applicant’s trial counsel during closing submissions to the jury, the ready explanation for the acquittal on count 2 is that the jury considered any – or all – of the matters advanced in connection with the photograph to create sufficient doubt as to the guilt of the applicant. It would not be open, in my view, to suggest that such a process of reasoning would be illogical, or be the product of the jury failing to adhere to its task: on the contrary, it would simply reflect an acceptance of the very case that was put to the jury on behalf of the applicant.
In this Court, the applicant sought to discount the materiality of Exhibit 3, submitting that the complainant’s evidence at trial was that she did not know that the applicant was present when this photograph was taken, and the photograph was taken without her consent (applicant’s submissions at [94]-[95]). Putting to one side that the submission adopts a different approach to Exhibit 3 to the one adopted by the applicant’s trial counsel, I do not accept this submission. It is sufficient, in my view, to simply note that the applicant’s evidence, although slightly ambiguous on this particular issue, was broadly to the opposite effect of the complainant’s: the applicant’s evidence was that the complainant knew he was holding his phone, and that he was using it to take photographs. Thus, it was open to the jury to accept (or reject) either version. In any event, whether the complainant knew that the applicant had taken the photograph did not undercut the forensic importance of the photograph, nor the way that the applicant’s trial counsel deployed it before the jury.
The applicant’s submission extended to arguing that, if Exhibit 3 was accepted by the jury as sufficient to displace the evidence given by the complainant in connection with counts 1 and 2, then the jury must have reasoned that they had a doubt about the applicant’s reliability and truthfulness: it was argued that the doubt which led to the acquittal “necessarily infected the evidence given by the complainant about counts 4 and 5” (applicant’s submissions at [98] and [100]). I do not accept that submission. It is contrary to the authorities that emphasise that, in cases involving a single complainant, an acquittal on one count does not compel the conclusion that the jury “must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which it has returned guilty verdicts”: Booth at [36]; MFA at [35].
Fourthly, in my view, the error in the approach of the applicant derives from its premise: namely, that there is “no discernible difference” between the evidence in support of count 2 as against counts 4 and 5 (applicant’s submissions at [69]). So too, building upon this, is the comparative analysis thereafter undertaken by the applicant with a view to establishing that the events “are for present purposes, identical events in nature”. They are not. There is no factual (nor temporal) overlap between the offending the subject of count 2 (which was alleged to have occurred on 11 or 12 April 2020), and the offending the subject of counts 4 and 5 (which was found to have occurred on 15 April 2020).
Further, there were, as the Crown submitted, some differences in the evidence between count 2 and counts 4 and 5 on the issue of consent.
In relation to count 2, although this evidence has been earlier summarised, it is convenient set out the complainant’s evidence in connection with the issue of consent:

CROWN PROSECUTOR
Q. So, after he told you to come and fuck him on the bed, what happened next?
A. He was still doing what he doing, like, masturbating himself and I told him to stop, and he didn’t want to stop so what he does, he pulled me over and he then he boxed me down and then he tried to take my underwear off and when I wouldn’t – I told him stop and he still continued doing it and he put his penis into my--
Q. Your vagina?
A. Yes.
Q. Okay, so I just want to go back a step, [the complainant]. You said you told him to stop. Can you remember what words it was that you said to him?
A. I said to him, “Why did you do this?”, like, “Why would you do this to me?” I told him to stop.
Q. Did he say anything back to you?
A. Yes.
Q. What did he say?
A. He said no. Just say - in my memory, he said a lot, like..(not transcribable)..it wasn’t an order, he said, “No, I like to do this”, and then when he tried to put me on the bed, he say, like, I knew he would do this and he touched my body and then he..(not transcribable)..bring the lace undies, make me turn it on and sexy, something like that, so because I tried to not remember this because it cause me anxiety so now it brings back a few more anxious and--
Q. [The complainant]--
A. Yeah. I’m so sorry, but--
Q. That’s okay. When Mr Ngo put his penis in your vagina after you’d said for him to stop, did he then do anything else to you?
A. Well, he doing the sexual activity.
Q. And whilst he was doing the sexual activity, did he touch you anywhere else on your body?
A. Yeah, he put his finger into my mouth.
Q. Did you say anything to him when he did that?
A. I tell him to stop, I don’t feel - I told him to stop and then he do, like, “Just shut up, bitch. Let me fuck you.” So, he - yeah, I feel dirty and ashamed, yeah.

In relation to the evidence directed to count 2, whilst it is clear that the applicant pulled the complainant to the bed in some manner, aspects of her evidence about the words she used were less so. In part that may well have been a product of the fact that English was not the complainant’s first language, and it is apparent from the transcript itself (and what was raised) that there were occasions of difficulty in understanding the complainant due to the manner in which she gave her evidence. So, in connection with that count, the word ‘stop’ used by her was initially directed to the applicant masturbating. It was then either repeated and directed to the applicant masturbating (“… he still continue doing it”) or about the applicant’s attempt to remove the complainant’s underwear – and, separately, irrespective of what act it was directed to, she may well not have used that word, but rather an expression such as “why did you do this” or “why would you do this to me”. Further, in relation to the complainant giving evidence of saying ‘stop’ on another occasion, the jury may well have understood this evidence to be directed to the applicant putting his finger into the complainant’s mouth, and not in relation to the penile/vaginal penetration. Given that the Crown’s case was put only on the basis that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse, the jury may have been left with a doubt as to whether, alone or in combination with the surrounding events, the Crown had established beyond reasonable doubt the degree of knowledge on the part of the applicant.
It is important in this context to note that, prior to the complainant completing her evidence in chief, the jury requested a copy of the transcript of the complainant’s evidence – something that is suggestive not only of the jury recognising, and being conscious of, the need to carefully scrutinise the evidence of the complainant in relation to each count, but also suggestive of the possible difficulties in the following aspects of the complainant’s evidence in connection with count 2.
In relation to count 4, although this evidence has also been earlier summarised, it is convenient to set out the complainant’s evidence in connection with the issue of consent:

Q. Did you at any point tell Mr Ngo to stop?
A. Oh, I repeatedly told him to stop. And then, because I got my phone in to do the..(not transcribable)..and I did tell him to stop and he keep ignoring, and that’s when I keep repeating it until he got me down to the mattress and start have a sexual activity.
Q. Okay, so you just said kept saying stop until he put you down on the mattress.
A. He forced me.
Q. Forced you down?
A. He grabbed me and he forced me down on the bed.
Q. Okay, so I want to ask you some questions about that. You say that he forced you down onto the bed. How did he do that?
A. By grabbing me on my shoulder, like around my - my - my shoulder. And then he just pull me and plop me down to the mattress and then he start using his finger to put into my like, my vagina, and start having sexual activity after that.
Q. Just before he put his finger into your vagina, [the complainant], did you say anything to him?
A. I told him to - well, I said - well, my - my - my - my response to him was all like, stop saying, don’t you ever use me as a sex slave. And he told me I’m a prostitute anyway, so he still want to do it. So, I told him I’m not a prostitute, and then he’s like, well, he say, just shut up, and just let me..(not transcribable)..and then he say like, oh, look, like you say something, but your vagina doesn’t like that. Because it’s been - sorry, you said, stop, but your vagina not say that. Because it’s wet.
Q. [The complainant], did he say that to you?
A. Yes, he did.
Q. Did he say that after he put his finger in your vagina?
A. Yes.
Q. And then after he put his finger in your vagina, what did he do next?
A. He start having a sexual - sexual intercourse with me and I was just feeling numb and again, and warning him to, just let him do, because I feel really like, powerless.
Q. When you say sexual intercourse, you mean he put his penis in your vagina?
A. Yes, he actually did.
Q. And when he did that, [the complainant], were you doing anything physical to him?
A. No, I didn’t because I just feeling numb, and I try to move around but he too strong for me, to defend, so I just sat and let because otherwise he want to slap me and he going to treat me like a sex slave because I read - not having any..(not transcribable)..daughter who asked and I don’t want to lie to her but I feel numb, I’d rather not think about it and just - sorry, just--
Q. Did you try and push Mr Ngo off you?
A. Sorry, can you say that again?
Q. Did you try and push Mr Ngo off you?
A. I try to push him a bit but then at the end, I just - I just feel there’s no point because I’m just feeling..(not transcribable)..I was already pushed down on my back already.
Q. When you tried to push him, did he say anything to you about that?
A. The actions - not comments, yeah, and something..(not transcribable)..I’m so sorry, I actually haven’t had a - recall much because I feel numb at the moment.
Q. [The complainant], can I ask you when Mr Ngo was having sex with you, when his penis was in your vagina, was he touching you anywhere on your body?
A. He touched my mouth, he put his fingers into my mouth.
Q. Anywhere else?
A. Yeah, in my body, from top to bottom.
Q. Do you remember how long he had sex with you for?
A. On that day, I can’t remember, on that day. It’s just too - it’s too repeat the action and I just - to be honest, I can’t even - this one, I can’t - something I want to forget, but this day, I only can remember that just happened and I can’t really remember much more.
Q. Do you remember if Mr Ngo was wearing a condom?
A. He did not wearing any condom at all because he told me that he wanted to have a baby and I said no.

As the Crown essentially submitted in relation to counts 4 and 5, in my view the complainant’s evidence in connection with lack of consent (and the applicant’s knowledge of this) was clearer, and appreciably stronger, than the evidence on count 2. For example, in connection with counts 4 and 5, the complainant’s evidence was that the applicant said: “… you said, stop, but your vagina not say that. Because it’s wet”.

Thus, in the ways described, I consider that the evidence about lack of consent and the applicant’s knowledge that the complainant did not consent, is a further basis to differentiate, and provide a plausible explanation for, the verdicts.
The applicant advanced two further arguments. The first was that the complainant “did not make a contemporaneous complaint of the allegations constituting counts 1-5 at any point in time to any person” (applicant’s submissions at [86]). It is not immediately obvious why the absence of this is material to an appeal ground directed to challenging the consistency of verdicts. In any event, it should be noted that the trial judge gave a direction to the jury, in line with s 294 of the Criminal Procedure Act, without complaint from the applicant’s trial counsel, and this ground of appeal involves no challenge to that direction.
The second was that the “only evidence in the trial as to the occasioning of counts 1-5 was the evidence of the complainant herself” and that there was an absence of “corroboration” (applicant’s submissions at [88]). Again, it is not immediately obvious why the absence of this in fact matters in connection with an appeal ground directed to challenging the consistency of verdicts. In any event, the trial judge gave a direction about this matter which took account of s 294AA of the Criminal Procedure Act, the correctness of which was not challenged.
In my view appeal ground 1 should be dismissed. There is “no affront to logic and common sense” suggesting a failure by the jury to perform the functions entrusted to it: Mackenzie at 368. Rather, to my mind, “far from providing an indication that a jury has fallen down its task … [it provides] 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”: AH v R [2019] NSWCCA 152 at [62].

Grounds 2 and 3

In relation to grounds 2 and 3, I have had the considerable advantage of reading the draft judgment of Adamson JA dealing with those grounds. I agree with her Honour’s reasons, and the orders proposed.

**********

Decision last updated: 22 August 2023

Medium Neutral Citation:	Ngo v R [2023] NSWCCA 201
Hearing dates:	19 May 2023
Decision date:	22 August 2023
Before:	Adamson JA at [1]; Ierace J at [116]; Chen J at [148]
Decision:	(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3. (2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). (3) Dismiss the appeal.
Catchwords:	CRIME — conviction appeal — where applicant acquitted of three sexual offences but convicted of a further three sexual offences — whether verdicts returned by the jury were inconsistent CRIME — conviction appeal — admission of evidence of “bad character” of applicant — whether trial judge should have made an anti-tendency direction — application to discharge jury made and denied in course of trial — anti-tendency direction not requested by applicant’s trial counsel — whether failure to give direction led to miscarriage of justice
Legislation Cited:	Crimes Act 1900 (NSW), ss 61HE, 61E, 61L, 112 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), ss 161, 294, 294AA Evidence Act 1995 (NSW), ss 95, 128, 191 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited:	AH v R [2019] NSWCCA 152 Booth v R [2022] NSWCCA 113 Browne v Dunn (1893) 6 R 67 Bussey v R [2020] NSWCCA 280 Cullen v R [2022] NSWCCA 63 Ganiji v R [2019] NSWCCA 208 Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Meher [2004] NSWCCA 355 R v Murray (1987) 11 NSWLR 12 R vTangye (1997) 92 A Crim R 545 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Soames v R [2012] NSWCCA 188 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Category:	Principal judgment
Parties:	Sang Ngo (Applicant) Rex (Respondent)
Representation:	Counsel: G Lewer / A Faro (Applicant) D Scully (Respondent) Solicitors: Veronica Love Lawyer (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2020/114647
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 November 2021 Before: Arnott SC DCJ File Number(s): 2020/114647

Date	Incident Details	Action Taken
1. EVENT REFERENCE NUMBER E 72898630
9 February 2020	Ngo and [the complainant] were cooking dinner when an argument ensued. During the argument [the complainant] was holding a butter knife. Ngo told [the complainant] to leave which she did. [The complainant] then regained entry through a bedroom window, [the complainant] called police and left the premises to wait for the police to arrive. Police arrived and Ngo told police [the complainant] was holding a butter knife but did not threaten or intimidate.	Police spoke to Ngo and found no offences occurred. Police happy to let both parties remain in the premises.
2. EVENT REFERENCE NUMBER E 73485344
24 February 2020	Argument over money ensued in the kitchen of the residence. Ngo called police and told them that he and [the complainant] were having an argument, that [the complainant] had become violent and that he had pinned [the complainant] down in an attempt to stop her hitting him. [The complainant] attempted to make Ngo leave by pushing with no success. Ngo wanted to collect some belongings. [The complainant] contacted her Family and Community Service worker and said Ngo gained access and slapped, grabbed and shoved her and that she locked herself in and he was trying to break in. Police arrived with Ngo still outside the property and [the complainant] still inside arguing.	Police obtained details from both parties and were unable to determine who was at fault. Both parties refused to provide statements and [the complainant] only wanted Ngo to leave the premises. Ngo was moved on from the location and no further action taken.
3. EVENT REFERENCE NUMBER E 73809707
25 February 2020	At about 9:30pm Ngo attended [the complainant]’s residence to collect some belongings. Ngo knocked on the door with no answer. [The complainant] was with her daughter in the back room and did not hear the knocks. Ngo entered the property through a window because he did not have a key. [The complainant] upon leaving the back room saw Ngo and became frightened. [The complainant] called 000.	Police attended the residence. Enquired as to damage, threats or violence – [the complainant] confirmed none of the above occurred. Police spoke to Ngo who told them he wanted to get his things and discuss money. Ngo advised that he had climbed through the window a number of times because he did not have a key. Police left without incident.
4. EVENT REFERENCE NUMBER E 73569111
4 March 2020	Verbal argument between Ngo and [the complainant] about Ngo’s trust issues. [The complainant] stated that she only wished to have a friendship relationship, but Ngo was adamant about maintaining their previously intimate relationship. [The complainant] contacted 000 and Ngo left without incident.	Police attended the residence and ascertained the argument was only verbal in nature and no offences were committed. [The complainant] informed police that she no longer wanted Ngo to reside there. Police said they would speak to Ngo and inform him. Police spoke to Ngo in regard to the above and Ngo said he would not return to the address “if I’m not wanted”.