O'Sullivan v R; Flanders v R; Tohu v R and NRH v R - [2012] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45
Hearing dates: 23 March 2012
Decision date: 18 September 2012
Before: McClellan CJ at CL at [1]
Davies and Garling JJ at [24]
Decision:
In our opinion the following orders should be made:
(1) Appeals of each Appellant allowed.
(2) Quash the convictions of the Appellants.
(3) In respect of the Appellant NRH enter a verdict of acquittal.
(4) In respect of the Appellants O'Sullivan, Flanders and Tohu order a new trial in respect of Counts 1, 3, 4 and 5.

Catchwords: CRIMINAL LAW - aggravated sexual intercourse without consent - appeals against conviction - fresh evidence - whether credible - admissions by one appellant - in adequate directions about use of admissions - directions regarding consent under s 61HA and at common law - no distinction made for offences for which s 61HA not applicable - rejection of evidence held to be concerning sexual reputation - distinction with sexual disposition - whether verdicts unreasonable.
Legislation Cited: Crimes Act 1900 (Cth)
Crimes (Sexual Assault) Amendment Act 1981
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1906 (WA)
Cases Cited: Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
Ka Chung Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169
M v The Queen [1994] HCA 63; 181 CLR 487
Melbourne v R [1999] HCA 32; (1999) 198 CLR 1
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Condon (1995) 83 A Crim R 335
R v Pemble [1971] HCA 20; (1971) 124 CLR 107
R v Tangye (1997) 92 A Crim R 545
Ratten v The Queen (1974) 131 CLR 510
Re Conlon (1993) 69 A Crim R 92
RH v R [2011] NSWCCA 98
SKA v The Queen [2011] HCA 13; 243 CLR 400
Taylor v R [2009] NSWCCA 180
Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602
WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
Category: Principal judgment
Parties: Bradley John O'Sullivan (Appellant)
Shay David Flanders (Appellant)
Manuel Tohu (Appellant)
NRH (Appellant)
Representation: A Francis (for the Appellant O'Sullivan)
G Brady (for the Appellant Flanders)
P Doyle (for the Appellant Tohu)
P Rosser QC (for the Appellant NRH)
J Pickering (Crown)
O'Brien & Hudson Solicitors (for the Appellant O'Sullivan)
Legal Aid NSW (for the Appellant Flanders)
C Hammond (for the Appellant Tohu)
Intercept Law (for the Appellant NRH)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/13734; 2008/13735; 2009/7289 & 2009/10832
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-05-03 00:00:00

Before:

King DCJ

File Number(s):

2008/13734; 2008/13735; 2009/7289 & 2009/10832

Judgment

McCLELLAN CJ at CL: In these appeals I agree with the orders proposed by Davies and Garling JJ.

I agree, for the reasons they give, that the appeal by NRH on the ground that the verdict in respect of him was unreasonable should be upheld. I also agree with their Honours in relation to the fresh evidence grounds of appeal. I prefer to express my own reasons in relation to section 293 of the Criminal Procedure Act 1986. It is unnecessary for me to resolve the other grounds and I express no view about them.

O'Sullivan Ground 2 and Flanders Ground 8: The following evidence was wrongly excluded under s 293(2) of the Criminal Procedure Act 1986:

During the incident the applicant [O'Sullivan] said to the complainant "I didn't know you were like this" to which the complainant replied "I'm full of surprises".

At the first trial an application was made by counsel for O'Sullivan to adduce evidence of a verbal exchange that took place between O'Sullivan and the complainant during the events occasioning the charges. On O'Sullivan's account, he said to the complainant:

"I didn't know that you were like this."

The complainant allegedly replied by saying:

"I'm full of surprises."

The precise timing of the exchange is not clear. However, I infer that it is alleged that the exchange occurred in the bedroom, while the four men were present and prior to Tohu engaging in oral sex with the complainant.

The admissibility of evidence relating to the sexual experience and reputation of a complainant in proceedings relating to sexual offences is governed by s 293 of the Criminal Procedure Act 1986. Section 293 provides that:

"293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

..."

The provisions contained in s 293 were originally introduced in 1981 as s 409B of the Crimes Act 1900 by the Crimes (Sexual Assault) Amendment Act 1981. The Crimes (Sexual Assault) Amendment Act was the culmination of a long process of law reform and contained a number of significant provisions affecting the prosecution of sexual assault offences. The purpose and intended operation of the legislation generally, and s 409B in particular, were clearly articulated in the second reading speech. When the Bill was introduced to the Parliament, the then Premier, the Hon. Neville Wran said:

"The object of the principal bill...is to remedy major defects in the law relating to rape and sexual assault. These reforms are designed to protect the victims of rape from further victimisation under the legal process; to encourage rape victims to report offences to the authorities; to facilitate the administration of justice and the conviction of guilty offenders; at the same time, to preserve the rights of the accused; and to serve an educative function in further changing community attitudes to sexual assault." (NSW, Hansard, Legislative Assembly, 18 March 1981).

The Premier then commented on the purpose of s 409B. He said:

"...the bill will prohibit irrelevant questioning of sexual assault victims about their prior sexual behaviour. This provision is based upon the premise that a person who seeks sexual intercourse with another should not be able to rely on scandal and gossip about the other person or on rumour or knowledge of the other person's sexual behaviour with others, as a basis for assuming consent to intercourse. The law should not - and under this legislation will not - allow the accused to subject the victim of the sexual assault to humiliation and irrelevant questioning about details of previous sexual conduct and attitudes. At the present time many victims believe that the humiliation they would face as a witness in court outweighs all other considerations. I have every confidence that the provision will play a significant part in encouraging victims to report offences, and to ensure that such victims will be treated justly and humanely by the judicial system." (NSW, Hansard, Legislative Assembly, 18 March 1981).

The purpose of s 409B was also discussed in plain terms in the introduction to a contemporaneous publication released by the NSW Department of the Attorney General entitled Sexual assault law reform in New South Wales: a commentary on the Crimes (Sexual Assault) Amendment Act 1981:

"The most important practical effect of the new legislation relates to limitation of cross-examination and material bearing upon prior sexual behaviour...Whereas in the past a standard type defence in a rape case has been for the accused to make an unsworn statement from the dock alleging his belief that the complainant was promiscuous, that she slept with virtually anyone and that she was reputed to be a "slut" or a "lowey" (to use the colloquial style of language often employed by many rape defendant), such tactics will now be prohibited. The accused may allege that he honestly believed the complainant consented, but he may not do so merely on the basis of rumour or gossip about the complainant." (Dr G. D. Woods, Sexual Assault Law Reforms in New South Wales, NSW Department of the Attorney General and of Justice, 1981).

The application to admit evidence of the exchange was first made at the trial before Phegan ADCJ relying upon to s 293(4)(a)(i) and (ii). It was submitted that evidence of the exchange constituted "evidence relating to the sexual experience" of the complainant and was therefore subject to exclusion under s 293(3). Phegan ADCJ rejected that categorisation of the evidence, ruling that the exchange constituted evidence relating to the applicant's sexual reputation and therefore fell within s 293(2). As no exceptions apply to the operation of s 293(2), the evidence was ruled inadmissible.

At the second trial the parties agreed to be bound by the decision of Phegan ADCJ. The correctness of that decision was challenged on appeal.

The Crown submitted, both at the trial and on the appeal, that the exchange involved the expression of O'Sullivan's belief about the sexual reputation of the complainant. The Crown submitted that the comment was made at a time when it was plain that the complainant was about to engage in sexual intercourse with multiple men, and when viewed in this context the remark amounted to O'Sullivan saying that:

"Given what I know about your sexual reputation, I didn't know that you were the type of girl that would have sex with multiple men."

The Crown submitted that the comment clearly related to the complainant's sexual reputation and was correctly excluded by the first trial judge.

On appeal, it was submitted on behalf of O'Sullivan that the evidence of the relevant exchange was not "evidence relating to" the sexual reputation of the complainant within the proper meaning of that term. The ground of appeal was also relied upon by Flanders.

The approach to be taken to the construction of the term "relating to" has been discussed in many cases. It is not without difficulty. In Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 Taylor J said at 620:

"...the expression... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used."

In Taylor v R [2009] NSWCCA 180 Campbell JA, with whom Latham and Harrison JJ agreed, considered the role of context in the construction of the expression. His Honour said at [41] and [42]:

"there is ample judicial authority concerning the approach to be taken to a construction of the words "relating to" in a statute. For example in Joye v Beach PetroleumNL (1996) 67 FCR 275 at 285 Beaumont and Lehane JJ said:

...Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J. Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J).

Similarly, in Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129 at [56], Fitzgerald JA said:

[56] The width of the phrase 'relating to' is undoubted. Lord Macnaghten stated that '[t]here is no expression more general or far-reaching': Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441; Colakovski v Australian Telecommunications Corporation [(1991) 29 FCR 429]; Secretary, Department of Foreign Affairs and Trade v Boswell [(1992) 36 FCR 367]; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [(1995) 184 CLR 301 at 329-330], although the addition of the words 'or depending on' was presumably intended to give the combined phrase 'relating to or depending on' a wider operation than 'relating to'. The difficulties of construction presented by such language have also been noted. Taylor J observed that '...the expression "relating to" ...is ... vague and indefinite...' and "... leaves unspecified the plane upon which the relationship is [to be] sought and identified': Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be 'direct' or 'direct and immediate': see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) (1977) 14 ALR 457 at 460, 462; [30 FLR 477 at 480, 483]; Re Dingjan; Ex parte Wagner [(1995) 183 CLR 323 at 364 and 370]; Joye v Beach Petroleum NL [(1996) 67 FCR 275 at 285]; see also Perlman v Perlman [(1984) 155 CLR 474]. Overall, the position judicially adopted has been that the operation of the phrase 'relating to' is determined by the statutory context and purpose: Butler v Johnston [(1984) 4 FCR 83 at 87]; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491."

The construction that should be given to the term "evidence relating to" in s 293 was considered by the High Court in obiter dicta in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443. In that case the issue before the Court was the correct construction of s 36BA of the Evidence Act 1906 (WA). Section 36BA provides that:

"In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of the defendant."

While "disposition" is not a category referred to in the New South Wales provision, the Court gave detailed consideration to the meaning of the phrase "evidence relating to". In the majority judgment of McHugh, Gummow and Hayne JJ, their Honours referred to what they considered to be the correct interpretation of that phrase in the context of the New South Wales provisions currently under consideration. Their Honours said at [89] - [92]:

"Also militating against the correctness of the first construction is the fact that the Western Australian Parliament used the words "evidence relating to" instead of the words "evidence disclosing or implying". In New South Wales, s 409B(3) of the Crimes Act 1900, [now s [293] of the Criminal Procedure Act 1986 (NSW)], which was in force at the time the 1985 Western Australian amendments were enacted, provided that "evidence which discloses or implies that the complainant has or may have had sexual experience" was inadmissible except on certain conditions. In his commentary on what was then s 409B(3) of the Crimes Act [now s 293(3)] Dr G D Woods QC stated:

"Note that the evidence need only 'disclose or imply' sexual experience or sexual activity to fall within the prohibition. It is immaterial that such disclosure or implication might be unintentional or merely incidental."

In contrast, the then s 409B(2) [now 293(2)] of the Crimes Act used the same "evidence relating to" formula as appears in s 36B of the Act:

"In prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible."

Of this provision, Dr G D Woods QC stated:

"This is an important provision, excluding irrelevant material about a complainant's supposed sexual behaviour as a proper basis upon which the facts of a particular allegation of sexual assault should be judged."

The reference to "a proper basis" suggests that the purpose for which the evidence is adduced may be important.

Their Honours ultimate conclusion, which is of relevance to the present case, was expressed in the following terms at [93]:

"The juxtaposition in the New South Wales legislation of "evidence relating to" and "evidence which discloses or implies" indicates that the Parliament of that State intended "evidence relating to" a certain fact to mean "evidence adduced for the purpose of proving" that fact."

The majority judgment also considered the nature of evidence that would constitute "evidence adduced for the purpose of proving" a particular fact. Their Honours said at [73]:

"On the assumption that the words "evidence relating to" are confined to testimony that tends to prove reputation, disposition or experiences, one needs also to bear in mind that testimony relating to conduct and testimony relating to out-of-court statements stand in different positions. As we have pointed out, testimony relating to conduct may have the tendency to prove disposition, even though it has the tendency to prove a fact in issue. Because that is so, the plain language of s 36BA prima facie prohibits all testimony relating to conduct that tends to prove the disposition of the complainant in sexual matters, even if the evidence is relevant and is tendered only for some other purpose. However, testimony relating to out-of-court statements is much less likely to tend to prove such matters. Independently of ss 36B, 36BA and 36BC of the Act, testimony concerning out-of-court statements by or in the presence of the complainant will only be admissible in limited circumstances. Because the complainant is not a party to the proceedings, testimony on behalf of the accused concerning such statements will be admissible to prove a fact asserted in the statement only if it comes within a recognised exception to the hearsay rule. The hearsay rule, and not ss 36B, 36BA or 36BC, will ordinarily prohibit the admission of such testimony. In the present case, for example, assuming that evidence of the telephone conversation was admissible, it nevertheless had no probative value in respect of any of the matters asserted in the statements except to the extent that they could be used as admissions against Bull.

At common law, the out-of-court statements of a complainant relating to that person's sexual reputation, disposition or experiences could not be adduced as evidence of the facts therein contained, whether evidence of the making of the statements was sought to be adduced in cross-examination or otherwise. They were excluded by the hearsay rule unless they fell within a recognised exception to that rule. Of course, if admissions could be obtained from the complainant as to the facts in such statements, they could be used to prove any fact in issue and the character and credibility of the complainant. No doubt the contents of the statements might be put to the complainant for various forensic purposes, but in principle proof that the complainant had made the statements would not prove their contents.

Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not." (emphasis added)

To my mind, the exchange between O'Sullivan and the complainant cannot be relevantly characterised as "evidence relating to" the complainant's sexual reputation. It consists of an out of court statement which, although it refers to the sexual reputation of the complainant, for the reasons set out by McHugh, Gummow and Hayne JJ in Bull, is not evidence tending to prove that reputation. The conversation was directly related to a fact in issue, namely the complainant's consent at the time of sexual activity. If accepted by the jury, the evidence was in essence an inquiry by O'Sullivan and confirmation from the complainant that she was consenting to group sex at a time when it was apparent that an activity of that nature was about to take place. The jury was not being invited to reason to a conclusion about whether the complainant consented or whether O'Sullivan believed that she consented based upon the complainant's reputation as a person likely (or not likely) to partake in sexual activities with multiple partners.

In light of this conclusion the question of whether the conversation is evidence that "discloses or implies" sexual experience must also be considered. In my opinion the evidence, particularly the complainant's alleged response to the applicant's statement, clearly implies that the complainant may have had sexual experience. However, the evidence is of events alleged to have taken place in the complainant's bedroom immediately prior to the alleged sexual assault. The evidence is therefore admissible pursuant to s 293(4)(a)(ii), which allows "evidence of events that are alleged to form a part of a connected set of circumstances in which the alleged prescribed sexual offence was committed".

I would uphold this ground of appeal.

DAVIES and GARLING JJ: The four Appellants appeared for trial at Gosford District Court on 19 April 2010 before King DCJ and a jury to answer an indictment containing seven counts relating to events which occurred on 12 January 2008.

Count 1 related to the Appellant Flanders only, alleging that he had committed an indecent assault upon the Complainant JS by kissing her on the breast in the kitchen area of her house before the other incidents occurred. Counts 2, 3, 4, 6 and 7 charged all four Appellants with five counts of aggravated sexual intercourse without consent upon JS, the circumstance of aggravation in each case being that they were in company. Count 5 charged all four Appellants with an attempt to commit aggravated sexual intercourse without consent upon JS, the circumstance of aggravation being again that they were in company. In relation to Count 6 the Crown was unable to identify the principal offender.

To enable an adequate understanding of the factual situation the following table indicates in relation to each of the counts 2-7 who the principal offender was alleged to be together with the sexual activity involved.

Count

Principal

Sexual Activity

2

NRH

Penile/vaginal intercourse

3

O'Sullivan

Fellatio

4

Tohu

Fellatio

5

Flanders

Attempted penile/vaginal intercourse

6

Unknown

Anal intercourse

7

Flanders

Penile/vaginal intercourse

On 10 May 2010 the jury returned verdicts of guilty against Flanders in respect of count 1 and against all Appellants on counts 3, 4 and 5. Each of the Appellants was acquitted on counts 2, 6 and 7. Each Appellant has appealed against his convictions. Tohu's appeal was filed out of time but, there being no opposition from the Crown, the time will be extended to permit him to appeal.

Background to the trial

The first trial of the Appellants took place before his Honour Acting Judge Phegan and a jury of twelve in September 2009. The evidence proceeded for five days during which time the Complainant gave evidence and was cross-examined by counsel for the all of the Appellants. There was no re-examination.

That trial then proceeded until a point during the cross-examination of the Appellant O'Sullivan when the jury was discharged.

The trial in respect of which the appeals are brought commenced before Judge King SC on 19 April 2010. The evidence of the Complainant in its entirety was played to the jury from the recording of her evidence made at the first trial. There had been some technical difficulties at the time of that recording which resulted in a substantial portion of her evidence being recorded by audio means only. However nothing turns on that from the perspective of the present appeals.

At the first trial counsel for O'Sullivan made an application under s 293 Criminal Procedure Act 1986 to cross-examine the Complainant and lead evidence about particular matters. One of these matters concerned an exchange between O'Sullivan and the Complainant whilst they were engaged in sexual activity. O'Sullivan said to the Complainant, "I didn't know you were like this" to which the Complainant replied "I'm full of surprises".

Phegan ADCJ ruled evidence of that conversation was inadmissible on the basis that it was a comment on her reputation. The parties at the second trial before King DCJ agreed to be bound by the decision of Phegan ADCJ pursuant to s 130A Criminal Procedure Act 1986.

The facts

The Complainant and the Appellant O'Sullivan had known one another since the end of 2006 or early 2007. She had worked casually at the Woy Woy Youth Centre where O'Sullivan worked full time. The Complainant had never met any of the other three Appellants before the night in question.

Whilst both the Complainant and O'Sullivan were at the Woy Woy Bowling Club on 10 January 2008 they had a conversation where each mentioned that the other had broken up with their respective partners. The Complainant gave O'Sullivan her telephone number at this time.

Thereafter on that night and on the following day the Complainant and O'Sullivan exchanged both telephone and text messages. Some of the text messages were of an explicitly sexual nature and suggested that a sexual encounter might occur between the Complainant and O'Sullivan on the night of 11 January 2008.

There was a factual dispute about whether the Complainant indicated to O'Sullivan that she was interested in having a threesome with O'Sullivan and another person. The Complainant denied that she ever intimated that she wanted to have such a threesome. On the other hand O'Sullivan gave evidence that in one call the Complainant had asked O'Sullivan if he was interested in a threesome. O'Sullivan also gave evidence that a little after discussing a threesome with Flanders he rang the Complainant to see if she was really interested in a threesome and the Complainant said that she was. Both O'Sullivan and Flanders gave evidence that this conversation was heard by both of them because O'Sullivan's phone was on loud speaker at the time.

What was undisputed was that the communications between the Complainant and O'Sullivan culminated in his requesting her to pick him up from The Webb at about 2:07am on 12 January 2008. The Webb was a youth centre on the corner of McMasters and Ocean Beach Roads, Woy Woy. That Centre was only a short distance from the Complainant's home. The message also asked if she would drop O'Sullivan's brother and his best mate off somewhere.

The Complainant drove to The Webb. O'Sullivan was there with Tohu whom he introduced as his best mate and NRH whom he introduced as his brother. O'Sullivan told the Complainant that he had to go and see another mate, and he asked her to take his brother and best mate (NRH and Tohu) back to her home. He said that he would not be long and would be there in about five minutes. The Complainant pointed out the location of her home to O'Sullivan.

The Complainant then drove Tohu and NRH to her home which was a small granny flat. She gave NRH a bottle of German beer and Tohu a bourbon and coke. A short time later O'Sullivan arrived at the premises with Flanders. O'Sullivan introduced him as his younger brother. The Complainant offered O'Sullivan and Flanders drinks.

When they were standing in the kitchen O'Sullivan put him arms around her waist. According to the Complainant Flanders then pulled the right side of her top down, exposing her breast. He said "great tit" and put his mouth on her breast.

Flanders' evidence was that the complainant herself exposed her breast and smiled at him when she did it. He agreed that he put his mouth on her breast. That was the basis of Count 1 charged against Flanders.

The Complainant then alleged that O'Sullivan let her go and went into the bedroom. He went towards the bedside table where she kept her sex toys. She said that she went after him and dived across the bed to try to stop him. She rolled over on the bed and said at that stage that the four Appellants were in the bedroom. Someone referred to getting her pants off her and O'Sullivan and Flanders proceeded to do that. The Complainant said that at that point she froze, she felt numb and frightened and had no control over what was happening.

She said that NRH then straddled her and placed his penis inside her vagina. That was the basis for Count 2 in the indictment. NRH denied this assertion of the Complainant. In fact, NRH claimed that he did not participate in any sexual activity with the Complainant. Rather, he said that he simply entered the bedroom to "stickybeak" on what was going on. All the Appellants gave evidence that NRH did not take part in the sexual activity. The jury did not convict on Count 2.

At the same time, O'Sullivan was beside her with his fly undone and his penis out. Flanders had his hand on the back of her head. He pushed it towards O'Sullivan's penis and she was forced to have oral sex with him. That was the basis of Count 3. O'Sullivan agreed that oral sex took place between the Complainant and him but said that he did not force her to do so. The jury convicted on Count 3.

Thereafter the Complainant said that Flanders was on top of her and Tohu had his hand on the back of her head, forcing her to perform oral sex on him. She said he ejaculated into her mouth. That was the basis of Count 4. Tohu agreed that he engaged in oral sex as described with the Complainant but said that he did so after O'Sullivan said to him, "She gives good head, get your dick sucked." The jury convicted on Count 4.

The Complainant said that Flanders was on top of her but was having difficulty getting his penis into her vagina. He said "what the fuck is going on, I can't get it in". That formed the basis for Count 5 of attempting intercourse. Flanders denied that he attempted to have sexual intercourse with the Complainant. He agreed that when he unzipped his pants, thinking that he may engage in some sexual activity with the Complainant, his penis was soft and he could not get aroused. The jury convicted on Count 5.

The Complainant said that there was then talk of lubrication and anal penetration with a vibrator which had been retrieved from the bedside table. She said that she then felt a sharp pain in her anal area but did not know if it was from the vibrator or from a penis. That formed the basis for Count 6. All the appellants denied any form of anal intercourse including with the vibrator. The jury did not convict on Count 6.

Thereafter the Complainant said that Flanders had his penis inside her vagina and was moving backwards and forwards. That formed the basis for Count 7. Flanders denied that he engaged in any form of intercourse with the Complainant. The jury did not convict on Count 7.

The Complainant said that when Flanders stopped having penile vaginal intercourse with her, she was told to get on her knees. She said that at that point she "lost it" and started yelling at them all to leave her alone. She said "fuck off, get out of here, just fuck off". Tohu, Flanders and NRH then left the room but O'Sullivan remained.

The Complainant said that when the three males had left the room, she found something to cover herself with. O'Sullivan started walking up and down saying "what the fuck have I done, what the fuck have I done". He said, "I didn't mean for this to happen" and "I'm sorry". He also said, "if you have to dob, don't dob the others in, just dob me in" and "I'm not fucking going to jail".

The Complainant then told him to "fuck off" and to leave. She then went into the bathroom, closed the door and put a cane basket against it. She said she could hear him asking what he could do to fix it and asking her if she wanted money. She then got into the shower and she did not hear from him again.

When she got out of the shower she rang her friend Michelle Jackson. Ms Jackson and another friend, Catherine Poyner, came around to the Complainant's place within minutes. They contacted two other friends, Michael Dwyer and Amanda Stubbs, who also attended her premises.

The Complainant was persuaded by Michael Dwyer to ring the police. Eventually she did so, the police arrived and she was taken to Gosford Hospital.

O'Sullivan, Tohu and Flanders all gave evidence that they believed the Complainant was consenting to the sexual activity either because they had been led to believe she was interested in a threesome or because of her behaviour at her house or for both reasons.

The Appellants have appealed on the following grounds.

O'Sullivan

Ground 1: A miscarriage of justice resulted from the absence at the trial of fresh evidence.

Ground 2: The following evidence was wrongly excluded on the basis that it offended against s 293(2) Criminal Procedure Act 1986:

During the incident the Accused said to the Complainant " didn't know you were like this" to which the Complainant replied "I'm full of surprises".

Ground 3: The Trial Judge erred in his direction to the jury as to what constituted reasonable grounds for a belief in consent.

Ground 4: In relation to Count 5, the Trial Judge erred in directing the jury on the law of consent in accordance with s 61HA.

Ground 5: The verdicts are unreasonable and cannot be supported having regard to the evidence.

Flanders

Ground 1(a): The Trial Judge erred in failing to direct the jury as to what in law constituted reasonable grounds for a belief in consent for the purposes of s 61HA Crimes Act.

Ground 1(b): The Trial Judge erred in failing to direct and explain to the jury that reasonable grounds for the purposes of s 61HA Crimes Act was not a reasonable person test.

Ground 2: The Trial Judge erred in failing to advert at any point in the summing up to the evidence of the Appellant and its relevance to an innocent state of mind namely:

(a) in respect of the indecent assault offence, an honest but mistaken belief in consent, and

(b) in respect of sexual assault offences, an honest but mistaken belief in consent based on reasonable grounds.

Ground 3: The Trial Judge erred in failing to advert in the summing up that an unreasonable but honestly held belief as to consent in respect of the indecent assault offence constituted an innocent state of mind.

Ground 4: The Trial Judge erred in failing to identify in the summing up that the innocent state of mind as to consent differed in respect of the indecent and sexual assault offences.

Ground 5: The Trial Judge erred in failing to direct the jury that the alleged admissions of the Applicant's co-offender Bradley O'Sullivan were not admissible against the Appellant (or any of the other Appellants) in consideration of their verdicts.

Ground 6: The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence and particularly so having regard to the Appellant's acquittal on grounds 2, 6 and 7 of the indictment.

Ground 7: A miscarriage of justice resulted from the absence at the trial of fresh evidence.

Ground 8: The following evidence was wrongly excluded on the basis that it offended against s 293(2) of the Criminal Procedure Act 1986:

During the incident the Accused said to the Complainant "I didn't know you were like this" to which the Complainant replied "I'm full of surprises".

Ground 9: In relation to Count 5 the Trial Judge erred in directing the jury on the law of consent in accordance with s 61HA.

Tohu

Ground 1(a): The Trial Judge erred in failing to direct the jury as to what in law constituted reasonable grounds for a belief in consent for the purposes of s 61HA Crimes Act.

Ground 1(b): The Trial Judge erred in failing to direct and explain to the jury that reasonable grounds for the purposes of s 61HA Crimes Act was not a reasonable person test.

Ground 2: The Trial Judge erred in failing to advert at any point in the summing up to the evidence of the Appellant and its relevance to an innocent state of mind namely an honest but mistaken belief in consent based on reasonable grounds.

Ground 3: The Trial Judge erred in failing to direct the jury that the alleged admissions of the Appellant's co-offender Bradley O'Sullivan were not admissible against the Appellant (or any of the other Appellants) in consideration of their verdicts.

Ground 4: A miscarriage of justice resulted from the absence at the trial of fresh evidence.

Ground 5: The verdicts are unreasonable and cannot be supported by the evidence.

NRH

Ground 1: The verdicts of guilty upon Counts 3, 4 and 5 of the indictment are unreasonable and cannot be supported having regard to the evidence, particularly having regard to the acquittal of the Appellant on Count 2 (as well as 6 and 7) of the indictment.

As is apparent, there is a large measure of commonality in the grounds of appeal. It is, therefore, convenient to deal with the grounds of appeal grouped into substantive issues.

Fresh evidence

O'Sullivan: Ground 1

Flanders: Ground 7

Tohu: Ground 4

The Appellants O'Sullivan, Flanders and Tohu say that a miscarriage of justice occurred because of the absence from the trial of certain fresh evidence.

The evidence was contained in a statutory declaration and was led at the hearing of the appeal from the deponent Michaela Pratten. Ms Pratten said that she had known the Complainant for about two years at the time of the relevant events and had developed a friendship with her in this time.

She said that on 12 January 2008 she attended Woy Woy Leagues Club at about 1:30am after she finished working at the Bayview Hotel at Woy Woy. She was in the company of her then partner Dana Cooper. As she arrived she saw the Complainant leaving the Leagues Club and they stopped and had a conversation as follows:

Pratten: Where you going?

Complainant: I've organised to have a threesome with Brad and one of his mates.

Pratten: Your (sic) fucking kidding aren't you. You're a fucking joke.

Ms Pratten that she became quite upset and angry and felt that she just wanted to go home after this exchange.

Since that time she heard that the Complainant had been raped and that four men were found guilty of raping her but she was not aware of the details.

Until about eight weeks before the time she made the statutory declaration on 30 November 2010 nobody had approached her about the matter for the purpose of giving evidence or providing a statement. At about that time another friend Holly Johnston approached Ms Pratten at the Ettalong pub and was very upset about what had happened to the Appellant Flanders. Holly told her that the Complainant had testified that she was only going to have sex with Brad on the evening the assault took place. Ms Pratten said to Holly Johnston:

That's fucking bullshit. She told me she had organised a threesome with Brad and one of his mates.

Holly Johnston told her that Flanders was locked away for the assault, and that was when Ms Pratten realised she might have information that might assist.

The principles concerned with adducing fresh evidence after a trial were summarised by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63]. It is not necessary to set out those principles. It is sufficient to note that those principles make clear that a court hearing an application to adduce fresh evidence is ultimately concerned with whether there has been a miscarriage of justice by reason of the absence of the evidence from the trial. Further, in circumstances where a new trial is sought three questions need to be answered. First, is the evidence fresh? If so, is it "credible" or at least capable of belief or "plausible"? Thirdly, if so, would that evidence, with the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused?

The Crown, in its written submissions, accepted that the Appellants were probably capable of establishing that the evidence was not available at the trial even with the exercise of due diligence. The Crown also accepted that the evidence could impact on the credibility of the Complainant, and could support the evidence of O'Sullivan regarding discussion of a threesome.

The Crown's principal opposition to the fresh evidence was that it was not credible evidence and, when seen with the other evidence at the trial, would not be likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused.

The Crown cross-examined Ms Pratten to show (somewhat surprisingly in the light of the Crown's partial concession about the freshness of the evidence) that Ms Pratten was sufficiently aware of what had happened to the Complainant and the fact that the four Appellants had been charged and tried, and that she had ample opportunity to come forward at an earlier time. The Crown also cross-examined in the light of affidavits it had obtained from Dana Cooper to suggest that no such thing had been said by the Complainant to Ms Pratten. Further, the Crown suggested that since there was a lockout at the Leagues Club at the time Ms Pratten said she was intending to go to the Club, the evidence appeared to be less than credible. The Crown wished to lead this evidence on the application but the Court held that it was not entitled to do so. In our opinion it would rarely be appropriate for this Court to permit evidence to be led contrary to the evidence that is sought to be given. In such a situation the result of leading such evidence would be that it would be necessary for this Court to make factual findings, including credibility findings about competing witnesses. The Court's task is only to decide if the evidence is credible or plausible evidence.

After hearing Ms Pratten's evidence the Crown submitted that there was no proper explanation that she had not come forward earlier. The Crown pointed to the fact that on the morning following the sexual encounter Ms Pratten was aware of the allegations made because she went to the Complainant's home to comfort her. The Crown also pointed to the fact the Ms Pratten attended at the trial, albeit for about five minutes during legal argument. In the Crown's contention she must have realised that her evidence was of significance.

In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ said at 520 that where the Court is considering whether the verdict of guilty should be set aside outright the Court should form and act upon its own belief in, or disbelief of, the evidence, whereas in cases where the Court is considering whether there should be a new trial the Court should consider whether the evidence was capable of belief and likely to be believed by a jury. For a guilty verdict to be quashed and an acquittal entered fresh evidence must be shown to have such cogency that innocence is shown by reason of the evidence: Abou-Chabake at [63] - fifth point. In our opinion the fresh evidence of Ms Pratten is not of that kind. At best it is evidence that the jury should have had available when it came to consider the competing accounts of events put forward by the Complainant on the one hand and by O'Sullivan and Flanders on the other. It is necessary to consider, therefore whether the evidence is capable of belief and likely to be believed by a jury.

Despite the cross-examination of Ms Pratten she did not waver from her recollection that the conversation she had with the Complainant was as Ms Pratten related it. In those circumstances the evidence was credible. If it was placed before a jury and, if evidence is led by the Crown, such as the evidence of Ms Cooper that the conversation did not take place, whether it is believed will be a matter for the jury to determine. That position may be contrasted with a situation where a person in Ms Pratten's position began to doubt, by reason of the cross-examination, if she had accurately remembered the conversation, or accurately recalled that it had taken place at the time that she said it did. In such circumstances this Court might conclude that the evidence was not credible.

It is then necessary to ask if there is a significant possibility that the jury, acting reasonably, would have acquitted the accused if this evidence was heard by them: Abou-Chabake at [63] - ninth point.

In our opinion if this evidence went to the jury with the other evidence in the case there is such a significant possibility for two reasons. First, it would tend to undermine the evidence of the Complainant that she did not agree to have a threesome, and did not have the telephone conversation that O'Sullivan and Flanders said she had with them concerning a threesome. Her credibility generally might thereby be affected. Secondly, it would tend to support the credibility of both O'Sullivan and Flanders who gave evidence of such a conversation. Bearing in mind that (except in relation to the attempted sexual intercourse) the jury acquitted the Appellants on the counts where they did not admit to the sexual act alleged and convicted on those where they did, the diminution of the Complainant's credibility and the bolstering of the credibility of O'Sullivan and Flanders in relation to this present issue is likely to have caused the jury to have entertained a reasonable doubt about the guilt of the Accused.

For this reason alone the appeals of O'Sullivan, Tohu and Flanders should be upheld and a new trial ordered.

Section 293(2) Criminal Procedure Act 1986

O'Sullivan: Ground 2

Flanders: Ground 8

At the trial before Judge Phegan, O'Sullivan made application on the second day under s 293 Criminal Procedure Act to lead evidence (and cross-examine the Complainant) about a conversation between O'Sullivan and the Complainant which took place at an unspecified point during the events giving rise to the charges. Although the time was unspecified the conversation must have taken place when the four men were in the bedroom with the Complainant. O'Sullivan said to the Complainant "I didn't know you were like this" to which the Complainant replied "I'm full of surprises".

The application was said to be about evidence;

that would or may imply that the Complainant has had a sexual experience or sexual experiences at about the time of the commission of this offence.

It may be taken, therefore, that it was sought to make the evidence admissible under s 293(4)(a).

Section 293 relevantly provides:

293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

It was not made clear precisely when, during the sexual encounter, this conversation was said to have occurred. The Crown submits that it was apparently at a time before oral intercourse commenced with Tohu, and when it was apparent that the Complainant was going to have a sexual encounter with multiple men. The Crown submits, therefore, that the comment was effectively O'Sullivan saying:

Given what I know about your sexual reputation, I didn't know that you were the type of girl who would have sex with multiple men.

Accordingly, the Crown submits that Phegan ADCJ was correct in ruling that it was a comment about the Complainant's sexual reputation and was therefore inadmissible under s 293(2).

In Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 McHugh J said:

[33] In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person. As the last of the above passages from R v Falealili demonstrates, however, the common law courts have not always drawn a distinction between character and reputation in a criminal context. The confusion can be traced to R v Rowton where a majority of the Full Court of the Crown Cases Reserved held that in a criminal trial the evidence for or against a person's good character must be confined to his or her general reputation. This is the established rule although, as this Court pointed out in Attwood v The Queen, the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule. (citations omitted)

In Bull v R [2000] HCA 24; (2000) 201 CLR 443 the joint judgment of McHugh, Gummow and Hayne JJ said:

[57] In discussing evidence concerning the character of an accused in a criminal trial, the New Zealand Law Commission has pointed out that:

On the one hand, the law distinguishes between evidence of general reputation and evidence of individual opinion and, in the case of the defendant in criminal proceedings, has historically recognised only the former. On the other hand, it is not always clear what is meant by reputation. On occasion, it appears to be used interchangeably with character. It may be important therefore to distinguish between character as public estimation - which is perhaps more correctly referred to as reputation - and character as disposition - which is something more intrinsic to the individual in question. (original emphasis)

[58] The concept of disposition referred to in this passage obviously refers to a person's tendencies or propensities as things intrinsic to the individual in question which exist independently of other persons' opinions of those features. They are part of the character of the person so that given a relevant set of conditions or circumstances the person concerned has a tendency or propensity to act in a particular way. In contrast, the general opinion that others have of those features may constitute part of the person's reputation. Thus, a person who anonymously donates large sums of money to charity may have a reputation for being miserly, but in truth that person's disposition is charitable.

It appears to us that the evidence sought to be admitted by the Appellants went not to the reputation of the Complainant but to her disposition. Certainly her own response cannot be regarded as having anything to do with her reputation. O'Sullivan's statement is not a reference to the public estimation or repute of the Complainant but is concerned with things intrinsic to the Complainant which may properly be described as her disposition.

Sub-section (4) sets out the exceptions to the prohibition contained in sub-s (3). In our opinion the evidence sought to be admitted falls within the exception in para (a). The result is that the evidence ought to have been admitted.

If this evidence had been admitted, it was evidence that clearly related both to the issue of the consent of the Complainant to what was happening and to the issue of the belief of O'Sullivan, and any of the other Appellants who heard the conversation, that the Complainant was consenting to what was happening. It was a significant piece of evidence for the jury to weigh in the balance with other evidence at the trial.

The admissions of O'Sullivan

Flanders: Ground 5

Tohu: Ground 3

At one point during the sexual encounters the Complainant allegedly told the Appellants to "fuck off, [to] get out of here, just fuck off and leave me alone". When she did so Flanders, Tohu and NRH left the room but O'Sullivan remained. The Complainant gave this evidence:

Q You also indicated in evidence that the accused, Bradley O'Sullivan, stayed in the room at that point after you said those words and the other three ran off?

A. Yeah.

Q. Is that right?

A. Yep but I could still hear their voices and that and I remember Bradley saying that "They're gone" and I said "No, I know they're" - no I knew they weren't, you could hear the voices and that and Bradley went to go out and I thought he was leaving the cabin as well and I was heading into, got up because actually I remember I was trying to find something to cover myself and that and I found on the right side down on the bed some clothing, some pants, jama pants or something and Bradley had walked back into the room. I tried putting my top down too. My top was still on but it was up here and I pulled that down and that's when Bradley lost it.

Q. Well can I just stop you there, you've said to us that you got up to find something to cover yourself?

A. Uh huh.

Q. At this point in time what clothes did you have on?

A. I only had on my bra, singlet and black top still but they were up above, under my armpits.

Q. You indicated you found something to cover yourself?

A. Yeah.

Q. And you indicated it was then that Brad lost it?

A. Yes.

Q. What do you mean by that?

A. Bradley O'Sullivan started walking up and down the bedroom saying "What the fuck have I done, what the fuck have I done" and that. "I didn't mean for this to happen and he apologised "I'm sorry", he should never. He was walking down, he was, I trusted him. ...

Q. You were telling us about your conversation you were having with Bradley O'Sullivan after the other three had left the bedroom? A. Yes.

Q. Did the accused, Bradley O'Sullivan, say something like, "If you have to dob, don't dob the others in just dob me in"?

A. Yes.

Q. Did he also say something like, "I'm not fucking going to gaol"? A. Yes.

Q. When he was saying that what was he doing?

A. I was sitting at the end of the bed crying and he's walking up and down in front of me of the bed with his hands to his head just doing this, "What the fuck have I done" and just like at a real frustration or - he was upset.

Q. Can I say this, when you've given that evidence, what you've demonstrated is that you put your two hands up above your forehead on your hair?

A. Like this, yeah.

Q. And you've been moving your head forward and back?

A. He was walking up and down. He was walking up and down, yes, like this, "What the fuck have I done. I'm sorry. I didn't mean for this to happen" and at that I told him just to get out to fuck off again, I said that a lot for him just to leave.

Q. And when you said that to him did he leave?

A. No.

Q. What happened next?

A. I just got up and walked and went to the bathroom, closed the door, put the cane basket up against it and I could hear him saying things in the effect of offering what he could do to fix it if I wanted money. I said, "I don't want your fucken money" and I - and I was in the shower and that's where he must have left because I never seen him again after that - that night.

In the course of her address the Prosecutor said this of that evidence:

Interesting too, what did she say Brad O'Sullivan says after this incident. She says a number of things. She tells you about conversations she had with Brad O'Sullivan. He says a number of things and they are these. "What the fuck have I done?" and he's got his hands on his head. You remember she demonstrated, he was going backwards and forwards saying, "What the fuck have I done?" Then he says, "I'm not fucking going to gaol." And, "If you have to dob, don't dob the others in, just dob me in." Now if we just think about that, not going to gaol, don't dob on the others, you might think why is he asking her not to dob on the others if they hadn't been involved. No reason to say, "Don't dob in the others," if two out of four didn't participate in any way, shape or form. And why is he concerned about going to gaol. Well the Crown says that suggests, you might think, that he knew precisely what had happened in that room and he knew, having regard to her distressed state at this time that she would report the matter and that he and his friends would be in big trouble and that's why he says that to her and you also, if you accept the evidence of JS, know that when she's in the shower, through the bathroom door he offers her money to fix it. To fix what, if nothing's happened. They're all matters the Crown says support JS in relation to certainly Bradley O'Sullivan's feelings about his responsibility and wrongdoing on this night.

When the Trial Judge summed up to the jury his Honour did not tell the jury that that evidence was only admissible against O'Sullivan. Further, when dealing with the evidence of each of the Appellants in his summing up, he said this:

You have heard the evidence of each of the accused in respect of those matters, and you are entitled to consider, in respect of the case for each individual accused and the Crown case, the evidence of each of the other accused. That is, the evidence given by each of the accused during the course of the trial is generally available for your consideration in respect of the whole of the case. I say that to distinguish it from the only exhibits which were tendered on a limited basis, and those were Exhibits P, Q, R and S, which were those documents referred to as being "admissions", where each of the accused admitted they had been at the premises on the relevant night, and in addition, Mr Flanders admitted that he had been wearing a red t-shirt.

Those admissions can only be used in respect of the case in respect of the individual accused, because he is the one making the admission. However, in the circumstances of this case, you might think you have abundant evidence otherwise, and in fact, when the accused have given evidence, they have said they were there, and that evidence they gave in the trial, can be used in respect of each of the cases. So you may well think that Exhibits P, Q, R and S take you no further than the evidence that was in fact given, except to the extent that the accused were prepared to make those admissions.

His Honour reinforced that direction later in his summing up by saying this:

I told you in my opening remarks this was a joint trial, and that really what you had occurring was four separate trials, one in respect of each accused, that they were being held together because as you have seen from the progress of the trial, the bulk really with the exception of Exhibits Q, R, S and T (sic), all of the evidence is admitted and available generally in the trial. So it is a matter of convenience and economy to proceed with one trial to which the four accused are party rather than four separate trials and have to repeat the matter on four occasions.

A little later in his summing up his Honour made reference to the Prosecutor's address dealing with this evidence where she said:

Why would he [O'Sullivan] be making those sorts of comments unless it was an acknowledgement that all that had happened beforehand was without consent, and an acknowledgement of the participation of each of the other Accused in those events.

His Honour made no comment to the jury that that evidence was only relevant to the case against O'Sullivan.

None of the counsel for the other Accused sought a direction from the Judge at the trial notwithstanding the Crown's address and notwithstanding what his Honour had said in his summing up. Rule 4 applies in the circumstances. No evidence has been put before the Court to explain the decisions made by counsel at the trial.

The Crown submitted that it was impossible to know if the jury had acted on the evidence set out in paragraph [104] above, with the verdicts they returned not confirming that they did so. The Crown submitted further that it was difficult to see how the jury would have used the second aspect of the admissions made by O'Sullivan against the other three Appellants. The Crown submitted that all that the evidence was capable of showing was that O'Sullivan felt regret for what had happened, and it could not establish the relevant guilty states of mind of the other Appellants.

In our opinion the fact that the trial judge identified particular parts of the evidence which could not be used against all of the Accused is likely to have conveyed to the jury that the remainder of the evidence, including these admissions of O'Sullivan, could be used against all of the Appellants. It is unfortunate that no counsel sought a redirection in terms of those admissions. Nevertheless, in our opinion the judge should have instructed the jury that this evidence was admissible only against O'Sullivan. The matter touching Rule 4 will be discussed later.

The issue of consent

Tohu: Grounds 1 and 2

O'Sullivan: Grounds 3 and 4

Flanders: Grounds 1 to 4, and 9

By reason of the joinder of the counts charged it was no easy task for the trial judge to differentiate the different tests for knowledge about consent applicable to the different counts charged in a way that would be readily understandable by the jury. Counts 2, 3, 4, 6 and 7 were governed by s 61HA Crimes Act 1900 whereas Counts 1 and 5 were governed by the common law. So much is clear: WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [80]. The distinction would not have been an easy one for the jury to appreciate and would have even been harder to apply to the different counts charged in the consideration of the facts that gave rise to each of those counts.

Section 61HA relevantly provides:

61HA Consent in relation to sexual assault offences

(1) Offences to which section applies

This section applies for the purposes of the offences under sections 61I, 61J and 61JA.

(2) Meaning of consent

A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3) Knowledge about consent

A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e) not including any self-induced intoxication of the person.

...

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

When his Honour summed up to the jury he dealt with the issue of consent first when dealing with Count 1. No criticism is made of the directions in respect of Count 1 in that regard. His Honour then dealt with the issue of consent in relation to Count 2 and relevantly said this:

On the other hand, you may decide that he might have believed, although wrongly, that the Complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the Accused honestly held it, and if so, whether he had reasonable grounds for that belief.

...

Now, I have already indicated that the Crown can prove the Accused had a guilty state of mind in one of two ways. Either he actually knew that JS was not consenting, or he had no reasonable grounds for his belief that she was consenting.

There could be no criticism of his Honour's direction in relation to consent in that regard in relation to Count 2. However, his Honour went on to say this:

The elements of the offence are the same in respect of Counts 3, 4, 5, 6 and 7.

...

[Y]ou should commence your deliberations by determining those first three elements.

That is,

1. That the individual Accused had sexual intercourse with JS, or in Count 5 that Shay Flanders attempted to have sexual intercourse with her,

2. In respect of all counts, that it was without JS's consent,

3. That the relevant principal accused in each of those counts 2, 3, 4, 5 and 7 knew that JS was not consenting.

Now, if you are unable to find, dealing for the moment again with Count 2, any one of those first three elements in respect of the Accused, Mr NRH, he would not be guilty, and also none of the other Accused in respect of that particular offence would be guilty either, because the Crown would not have proved that he had, in fact, had sexual intercourse with her, that it was without her consent, and that he knew that she was not consenting.

That similarly applies when you come to consider each of the other counts, including Counts 2, 3, 4, 5 and 7.

His Honour then had his written directions provided to the jury in relation to each of the Counts and in respect of each of the Appellants. He then took the jury through the written directions concerning Count 1. The jury were sent out for morning tea and his Honour asked counsel "Is there anything so far?" and all counsel said that there was not.

In relation to Count 5 (the attempted intercourse) the written directions relevantly said this:

Consent - A person consents to an act by another person if they freely and voluntarily agree to the act being performed by that other person. That consent can be communicated by the words or acts of the Complainant. Similarly, absence of consent does not have to be in words; it also may be communicated in other ways, such as the offering or resistance although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

...

For the purpose of determining whether the Accused Shay FLANDERS knew she was not consenting to the attempted sexual intercourse you must have regard to all the circumstances of the case including any steps taken by Shay Flanders to ascertain whether she was consenting to the sexual intercourse.

...On the other hand, you may decide that he might have believed, although wrongly, that [JS] was consenting to the attempted intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the Accused honestly held it and, if so, whether he had reasonable grounds for that belief...

In relation to each of the other Appellants and this Count his Honour said in his written directions:

In order to establish that the [each of the other Appellants] was an aider and abetter the Crown must prove beyond reasonable doubt:

...

[T]hat [each of the Other Appellants] knew all of the essential facts (that there was attempted sexual intercourse, that it was without the consent of [JS], and that Shay Flanders knew she was not consenting)...

After the morning tea adjournment his Honour then took the jury through his written directions and when he reached Count 5, he said this:

If you go to Count 5 of the document, this is the Count in which the allegation is there was an "attempt". So you will see that in setting out at the top of p. 47 what the charge is I have put the word "attempt" in bold just to ensure that you have it in mind that that charge is slightly different in its terminology to the preceding charges. Then the act, "sexual intercourse", is set out, then, as that is an allegation that Mr Flanders was the principal, he is now set out as the first person you should deal with in respect of that Count, and all of those same matters as to "attempt", "consent", "knew she was not consenting", "in company" and "common purpose", and what you do in respect of your findings in respect of the elements are set out on three possible verdicts,

...

Now, one thing that is different in respect of Count 5 is that under "meaning" and "relevance of, you will find that I have put at the top of p 48, the word "attempt" and what that means. That, of course, is not included in any of the earlier matters because they are not alleged to be "attempts"; they are alleged to be completed acts, and you will see that what I have said there is that the Crown must establish first that Shay Flanders intended to commit the particular crime of having sexual intercourse with JS without her consent, knowing that she was not consenting.

...

You will find that then set out are the same material as you have already seen in the other ones in respect of the co-accused, that is Mr O'Sullivan at p.53, Mr Tohu at p.56, and Mr NRH at p.59, of course setting out all of the usual matters including the possible verdicts.

The written directions in relation to Count 5 constituted, by reason of what was said in WO v DPP, an incorrect statement of the test concerning the belief of the Appellant concerning consent. His Honour should have directed the jury that if the Appellant honestly, though wrongly, believed the Complainant was consenting to sexual intercourse he was not guilty of the attempt to have sexual intercourse with her. His Honour wrongly reinforced his error by aligning his oral directions on Count 5 with his directions concerning consent in relation to Count 2 and the other counts. There is no requirement that the Appellant have reasonable grounds for believing that the Complainant consented to the sexual intercourse. His Honour further reinforced the error by saying "now, one thing that is different in respect of Count 5 is... the word 'attempt' and what that means".

The directions given by his Honour with respect to Count 5 were erroneous. However, no counsel requested his Honour to correct the direction given. Rule 4 applies. As noted above its application will be discussed later.

In addition, Flanders submitted that the Trial Judge's directions in relation to consent were inadequate because his Honour did not advert to Flanders' evidence nor relate his evidence to a relevant matter of law, namely an honest but mistaken belief in consent (Count 1) and a belief in consent based on reasonable grounds (Counts 3 and 4).

What was said to be lacking in the Trial Judge's instructions was that he did not explain to the jury what constituted reasonable grounds for a belief in consent, that the test was not whether the reasonable person might have believed in consent but rather whether the Crown had established beyond a reasonable doubt that the belief held by the Accused was not based on reasonable grounds, and that the jury needed guidance as to the mandatory provision of s 61HA(3)(d), namely that the trier of fact must have regard to all the circumstances of the case which must include subjective factors relevant to the Accused.

Flanders also submitted that the test in s 61HA(3) was not a completely objective test. Rather, the subjective element (the honest belief) was to be tested by demonstrating reasonable grounds for the subjective belief. Decisions in relation to the test for self-defence such as Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 and Re Conlon (1993) 69 A Crim R 92, were called in aid. It was submitted that the meaning to be given to the words in the statute ought to be seen in the light of the use of similar words in other areas of the criminal law such as self-defence. In Zecevic the Court said that where self-defence is raised the question to be asked is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. In Conlon Hunt CJ at CL said (at 98):

But it is clear from the formulation of the issue in Zecevic v DPP that it is the belief of the accused, and not that of the hypothetical reasonable person in the position of the accused, which has to be reasonable.

His Honour said in his written directions :

"Knew she was not consenting" - There are three ways that the Crown can prove that [NRH] knew that [JS] was not consenting:

1) by establishing that at the time of the act he actually knew she was not consenting: or

2) by establishing that a the time of the act he was reckless as to whether she was consenting.

To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either:

(a) the accused's state of mind was such that he simply failed to consider whether or not [JS] was consenting at all, and Just went ahead with the act performed, even though the risk that she was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it, or

(b) the accused's state of mind was such that he realized the possibility that [JS] was not consenting but went ahead regardless of whether she was consenting or not.

If the Crown establishes beyond reasonable doubt that the accused at the time of the act was reckless as to whether [JS] consented to the act, then it is the law that the accused is taken to know that she did not consent to the act.

3) by establishing that at the time of the sexual intercourse he had no reasonable ground for believing that [JS] consented to the sexual intercourse.

For the purpose of determining whether the accused [NRH] knew she was not consenting to the sexual intercourse you must have regard to all the circumstances of the case including any steps taken by [NRH] to ascertain whether she was consenting to the sexual intercourse.

It is the accused's actual knowledge of the lack of consent with which you are concerned. You might therefore ask how the Crown can prove that the accused was aware that [JS] did not consent without an admission from the accused to that effect The Crown asks you to infer or conclude from other facts that it has set out to prove that the accused must have known and that he did indeed know that [JS] was not consenting.

In a situation where the complainant does not in fact consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that she was not consenting. That is a guilty state of mind for this offence. If the Crown satisfies you beyond reasonable doubt that this was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out.

On the other hand, you may decide that he might have believed, although wrongly, that [JS] was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore if you are not satisfied that the accused knew the complainant wasn't consenting, the Crown must prove one of two facts before you can find the accused guilty: either (a) that the. accused did not honestly believe that the complainant was consenting or (b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief.

It is for the Crown to prove that the accused had a guilty mind, and so if there is the reasonable possibility that the accused did honestly believe on reasonable grounds that [JS] was consenting, then you would have to find that this third element of the offence is not made out, and return a verdict of "not guilty " of this charge.

In determining whether the Crown has proved that the accused actually knew that the complainant was not consenting to intercourse with him you must take into account what steps were actually taken by the accused to ascertain whether the complainant was consenting to intercourse. (emphasis added)

It is apparent from these directions that the jury was given a construction of s 61HA consistent with what was said in Zecevic and Conlon. The Trial Judge said in that regard:

Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief.

His directions followed carefully those set out in the Bench Book. There can be no criticism of them.

The submission by Flanders was ultimately refined to a complaint that his Honour made no reference in his directions to all the circumstances of the case as sub-s (3) requires. Attention was directed to pages 6 and 7 of the written directions set out at [125] above. The submission was that where his Honour deals in the paragraph commencing "On the other hand..." (the paragraph dealing with erroneous belief about consent) the Trial Judge did not refer to the jury needing to have regard all the circumstances of the case.

That appears to us to ignore the way his Honour approached the written directions. He has followed faithfully the terms of sub-s (3) in the paragraphs numbered in the written directions (1)-(3) with the paragraph that immediately follows. It is in that last paragraph , following the part of sub-s (3) between sub-paragraphs (c) and (d), that his Honour refers to the jury having to have regard to all the circumstances of the case. That particular paragraph is not a paragraph about sub-s (3)(a) but about what is to be taken into account in respect of sub-s (3) generally. It was not necessary for his Honour to refer again to the jury needing to have regard to all the circumstances of the case when he was seeking to expand on what was said in sub-s (3) by such paragraphs as the one commencing "On the other hand". We see no error in that regard.

Flanders further submitted that, in any event, what his Honour failed to do was to advert to the evidence which constituted "all the circumstances of the case" relevant to the issue of knowledge and the reasonable grounds that the Appellant had for his belief.

No counsel asked for his Honour to do what is now, on the appeal, submitted should have been done by the Trial Judge. Relevantly, the only application made was one by Flanders' counsel at the beginning of the third day of the summing up. His Honour was asked to sum up the defence cases to the jury, and reference was made to R v Condon (1995) 83 A Crim R 335. After some argument his Honour declined to do what was asked, saying that in his view he had put the defence case properly by referring to the addresses made by counsel.

Subject to the matter discussed below, what his Honour did was entirely in accordance with what was said in Condon. In that case Allen J (with whom Newman and Simpson JJ agreed) said (at 347-8):

The first is that it is the task of the trial judge not merely to give formal directions of law as to the legal elements of the offence charge but to explain to the jury the application of those elements to the respective cases of the Crown and of the accused. In short, it is his duty to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo, it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises.

I do not overlook that since the observations of this Court in R v Zorad (1990) 19 NSWLR 91 as to the duties of the trial judge in summing up s405AA of the Crimes Act 1900 was enacted. So far as relevant that section provides: "(1) A Judge of the Supreme Court or District Court need not summarise, at the end of a criminal trial before a jury, the evidence given in the trial if the Judge is of the opinion that, in all the circumstances of the trial, the summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial."

S405AA applied to the present trial. But even if it reasonably was open to his Honour to form the opinion that a summary of the evidence was not necessary as to which it is not necessary to express an opinion, s405AA does not relieve a trial judge of the duties to which I have referred. The fulfilment of those duties does not require that the evidence be summarised as distinct from the respective cases being stated and the jury instructed as to the application of the law to those cases. (emphasis added)

His Honour summarised the addresses of each of the Appellants' counsel. We see no error in that regard.

The Appellants accepted that they had not addressed the jury "in any detail as to the evidential basis for a belief in consent" (to use the words of Flanders' counsel), nor had they dealt with all the circumstances of the case. Nevertheless, it was submitted in reliance upon R v Pemble [1971] HCA 20; (1971) 124 CLR 107 at 116 and upon what Davies J (with whom Simpson J and Grove AJ agreed) said in RH v R [2011] NSWCCA 98 at [56]-[62] that the Trial Judge should nevertheless have summed up to the jury in relation to those matters.

The Appellants accept that no request was made to the Trial Judge to take this course. Rule 4 thus applies.

The Crown submitted that there was no obligation on the Trial Judge to put forward matters in his summing-up that would have undermined the defence arguments. This was because the circumstances that would need to be detailed to the jury would be put to them on the assumption that that Complainant did not consent to the sexual acts. Nor, the Crown submitted, was it the role of the Trial Judge effectively to argue the Appellants' case in an evidentiary sense in a manner other than was desired by the Appellants.

In our opinion the Crown's submissions should not be accepted. It is not clear why directing the jury's attention to circumstances which might have provided reasonable grounds for a belief in consent was either inconsistent with, or undermined, the way the Appellants put their case. Indeed, it is not easy to understand why the matters which went to the belief of the Appellants about the Complainant's consent were not corroborative of the case they were arguing. This was not a case where the issue of consent was to be determined by whether there was an express agreement to such, with concomitant considerations of whose evidence was to be accepted. If that had been the principal issue, a fall-back position based upon belief on reasonable grounds might have given rise to awkward forensic and tactical decisions. In such a case a trial judge taking the initiative of putting the fall-back position, although not raised by the defence in addresses, might have prompted concern on the defence side.

In the present case the basis for the assertions of the Appellants that the Complainant consented to the sexual activity derived from the same matters or circumstances that would have been relied upon by them to establish their belief and the reasonable grounds for that belief. The Appellants gave evidence of these matters, the Crown cross-examined about those matters and the Appellants' counsel referred to them in closing addresses. In that way there was a real issue concerning the belief of the Appellants and whether they had reasonable grounds for their belief.

The Trial Judge had given directions about dealing with consent which, in respect of Counts 1, 3, 4, 6 and 7 were entirely correct as far as they went. That is to say, he had correctly identified the proper legal test based upon s 61HA for Counts 3, 4, 6, and 7, and based upon the common law for Count 1.

In Pemble Barwick CJ said (at 117-118):

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

...

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. (emphasis added)

If that is a trial judge's obligation even where counsel takes a deliberate course to the contrary, it is the more so where the issue has clearly been raised by the evidence and the addresses. Further support for that proposition is to be found in the dissenting judgment of Gleeson CJ in Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343:

[2] The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

Apart from the absence here of a specific request to the Trial Judge to put to the jury what is now contended for, and a subsequent refusal by him to do so, the present case does not differ from RH v R - see especially at [59]-[61].

It must immediately be said that, although we consider that his Honour erred in not making some reference to the matters relevant to reasonable grounds for the Appellants' belief ("all the circumstances of the case"), no criticism can be levelled at his Honour in that regard. His Honour, as we have noted, did not have an easy task in directing this jury generally given the number and nature of the Counts charged, the subtle differences in the tests for consent between the Counts, and the failure (or deliberate decision) of Counsel to request his Honour to direct appropriately. In that regard Rule 4 must now be discussed.

Rule 4

Three matters were argued on this appeal where Rule 4 has application. These concern (1) directions regarding O'Sullivan's admissions, (2) directions regarding the proper test for consent with respect to Count 5, and (3) directions with regard to factual matters relevant to reasonable grounds for belief in consent. Leave is, therefore, necessary to allow the grounds of appeal associated with those matters. The onus is on the Appellants to show that the asserted errors have caused a miscarriage of justice: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [72].

In respect of the first matter concerning O'Sullivan's admissions, whilst the matter is of some significance, if that were the only error made in the summing up, we would not regard the matter as appropriate for the grant of leave. That error alone is unlikely to have resulted in a miscarriage of justice. In relation to the direction concerning Count 5 different considerations apply. In Ka Chung Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169 Latham J (with whom Spigelman CJ and Kirby J agreed) said in relation to Rule 4 at [48]:

I acknowledge that a failure to direct correctly or at all, in relation to the elements of an offence, stands in quite a different category, and that in such a case an applicant will generally be able to persuade the Court that a miscarriage of justice may have occurred.

Further, when all three Rule 4 matters are considered together with the s 293 matter we consider that leave should be granted. A refusal to do so is likely to result in a miscarriage of justice for the reasons we have discussed when considering the grounds concerned. .

Are the verdicts unreasonable?

O'Sullivan: Ground 5

Flanders: Ground 6

Tohu: Ground 5

NHR: Ground 1

Each Appellant appeals upon the basis that the verdict of the jury was "unreasonable, or cannot be supported having regard to the evidence": s 6(1) Criminal Appeal Act 1912.

When dealing with such grounds of appeal, the Court is required to make an independent assessment of the whole of the evidence to determine whether the verdicts of guilty could be supported: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [21].

That assessment is made so as to determine whether:

"... the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged".

SKA at [21].

In M v The Queen [1994] HCA 63; 181 CLR 487, the following propositions were made clear:

(a) the question is one of fact: M at 492 per Mason CJ, Deane, Dawson and Toohey JJ;

(b) in answering the question, the Court must pay full regard to:

(i) the jury being the body entrusted with the primary responsibility of determining guilt or innocence; and

(ii) consideration that the jury has had the benefit of having seen and heard the witnesses: M at 493.

As the majority in M noted, if the Court upon reviewing the evidence has a doubt, then ordinarily that is a doubt which the jury should have experienced. However, there may be some cases in which a doubt experienced by a Court can be resolved because of the jury's advantage in seeing and hearing the evidence. If such a resolution is reached, then no miscarriage has occurred: M at 494.

However, if a Court concludes, having made allowances for the advantage that a jury has, that there is "... a significant possibility that an innocent person is being convicted ...", then the verdict is bound to be set aside: M at 494.

Each of the Appellants was found guilty on Counts 3, 4 and 5 in the indictment. The details of these counts are set out earlier at [25] and [26]. As well, the applicant, Flanders, was found guilty of Count 1. None of the other Appellants was charged with the conduct in Count 1.

NRH

It is to be remembered that NRH was said to have been the principal offender with respect to the conduct in Count 2. It was said that he had penile/vaginal intercourse without the consent of the Complainant. NRH gave evidence in which he denied engaging in that conduct at all. Clearly the jury was not satisfied, beyond reasonable doubt, that the conduct occurred as was alleged by the Complainant.

It was not said that he was a principal with respect to Counts 3, 4 and 5. Any conviction of NRH on those counts arises because of his participation in a joint criminal enterprise.

As we have earlier recounted, NRH was introduced to the Complainant when she collected him and Tohu from outside The Webb. She drove them to her flat and, upon arrival, gave them a drink.

Leaving to one side the Complainant's evidence about NRH engaging in sexual activity with her, which the jury must have rejected in order to find him not guilty on Count 2, the substantial evidence as to what NRH did at the Complainant's flat came from his own evidence at trial.

In chief he denied that he was ever part of any understanding or arrangement to sexually assault the Complainant, he denied any knowledge of any understanding or arrangement between any other persons that they would sexually assault the Complainant and he denied that he in any way intentionally encouraged or assisted anybody to have sex with the complainant without her consent.

In cross-examination, he gave evidence that based upon what O'Sullivan had told him, text messages which he had seen and the fact that there was contact between her and O'Sullivan in the early hours of the morning, as a consequence of which he was invited back to the complainant's house, he believed that there was to be a threesome involving the Complainant, O'Sullivan and Flanders.

When asked how he came to be in the bedroom, he said that he just wanted to "be a sticky beak, just to see what they were doing".

He said that when he looked into the room, the Complainant was already naked with Flanders on one side of her and O'Sullivan on the other. When pressed in cross-examination, he agreed he could not advance any particular reason why he remained in the room observing what was going on, but he simply "just watched" whilst O'Sullivan received oral sex.

When pressed further in cross-examination he said: "I just didn't leave, I was just sort of shocked."

He said that he left the bedroom when the Complainant called out "stop," and walked away from the doorway where he had been standing.

The only other evidence was that from the Complainant when she said that immediately after she attempted to prevent O'Sullivan going to a drawer in her bedroom, whilst she was lying, still clothed, on the bed, NRH was in the bedroom. She said: "... that's when they were all in the bedroom by this time". Her evidence was that it was after that point in time that her clothes were forcibly removed and that she was then assaulted without consent.

In submissions to the jury, the Crown said this with respect to NRH:

"NRH, the last accused to give evidence. He told you very clearly [he had] absolutely no interest in a sexual encounter that night. He agreed with the Crown that there was absolutely no reason for him to go anywhere near that bedroom that night. He knew about the threesome, but he wasn't in on it. So absolutely no purpose for him to go to that bedroom. He agreed, none of his business what was happening in there. He then tells us that he is not invited into the room, he goes in there, essentially to be a sticky beak, his words. He is not planning to be involved in any way, shape or form. He is a bit shocked by what he saw, but he stays there. And the Crown says to him, well, if you're not in on it, why do you stay there. And he's not sure, he can't give a reason for why he stood there. The Crown says to you that that is because, that's not why he was there, to have a sticky beak, he was in on it as well, he had already - he had a turn, he was the first to have a turn of penile/vaginal intercourse while Bradley O'Sullivan was having oral sex with the complainant.

The Crown says there is no logical explanation why you stand there and watch your friends having a threesome if you have no interest in the sexual encounter and be shocked by it."

In short the Crown submitted that the jury would not accept that explanation, and would accept the Complainant's evidence as to what NRH did to her.

In this Court, the Crown submitted that the verdicts on Counts 3, 4 and 5 with respect to NRH were not unreasonable because NRH's presence in the room was not "mere presence" but, that his presence in the bedroom was capable of being seen by the jury as evidence of a desire to assist and encourage his co-appellants as required, and a willingness to assist as required. It also relied upon the failure of NRH to leave or intervene during such conduct as being significant in all of the circumstances.

The Crown case was one of joint criminal enterprise. The jury rejected the participation of NRH in the events of that evening on the basis that he was a principal, and was taking his turn. There is no other conclusion available from the finding of a verdict of not guilty on Count 2.

That meant that the jury was left to infer the participation of NRH in the joint criminal enterprise by being present at a time when a crime was being committed and with knowledge that the crime was to be, or was being committed, that he intentionally assisted or encouraged another participant in the joint criminal enterprise to commit the crime: see R v Tangye (1997) 92 A Crim R 545 at 556-7.

We are not satisfied that it was open to the jury to conclude beyond reasonable doubt, that NRH's presence, without anymore being said or done by him, was in the circumstances anything more than mere presence. He provided no encouragement to the others. There was no evidence that he said or did anything to encourage the conduct by O'Sullivan, Flanders and Tohu, which formed the basis of Counts 3, 4 and 5. There was no evidence that he even knew that a crime was being committed. On the contrary, his evidence was that he understood that what was happening was a consensual arrangement.

In all of those circumstances, we are satisfied that these convictions against NRH are unreasonable and cannot stand. On the evidence before the jury, it was not open to convict him of these offences.

We would uphold this ground of appeal in respect of NRH, and direct the entry of an acquittal of him, on Counts 3, 4 and 5.

O'Sullivan, Flanders and Tohu

The case against each of these three was with respect to Counts 3, 4 and 5, identical. There is no doubt that each accepted that they had participated in a joint activity in which each had sex with the Complainant, taking it in turns, one after the other.

The principal issue joined between the Crown and these three Appellants was whether or not the Complainant consented to the conduct which was occurring.

The Complainant in her evidence denied that she consented to having sex with these three Appellants. She said that her clothes had been forcibly removed from her, and that her participation in each of the assaults, which constituted Counts 3, 4 and 5, was a forced one. She said for example, that her head was forced into a position where oral intercourse occurred. She said she had no opportunity to, effectively, resist and that she was physically hurt by what occurred.

On the other hand, each of the Appellants gave evidence, each denied that there was any force or violence involved in the assault and each asserted that the Complainant had consented, although not necessarily in express terms.

There was evidence before the jury that corroborated the Complainant's account. This included, but was not limited to, the complaints and the contents of them, which she made immediately after what occurred.

There was evidence, which the jury might consider corroborated the account of the Appellants. For example, there was no doubt that the Complainant had collected at least Mr Tohu from outside The Webb, and that she had welcomed Mr O'Sullivan and Mr Flanders to her home, and had provided them with alcohol. There was evidence that she had flirted, in a sexual manner, with the men present. There is no suggestion that, early in the morning, when these events occurred, that she had in any way asked any of the four males present in her small home, to leave.

Ultimately, however, the question of whether the Complainant did or did not consent was a matter that depended on a careful scrutiny of the way in which the Complainant and each of these three Appellants gave their evidence.

The principal issue between the Complainant and these Appellants was one which classically was a matter for the jury to determine. They were in a significant position of advantage when compared to an appellate Court.

It would not be right, in accordance with the authorities to which earlier reference has been made, for us to prefer a reading of the evidence, any doubt which that might create and any conclusions which we might draw as to the existence of a doubt, to the conclusions of the jury in the circumstances here present, where the jury had a decided advantage in assessing the credibility and demeanour of the Complainant on the one hand, and the credibility and demeanour of these three Appellants on the other.

Even if we were persuaded that a doubt exists, about which we need not reach any conclusion, it is a doubt which is properly resolved by the jury's advantage in seeing and hearing the witnesses. We are not persuaded, in those circumstances, that the verdicts were unreasonable, or that with respect to Counts 3, 4 and 5, the appeal by O'Sullivan, Flanders and Tohu ought be upheld on this Ground.

Mr O'Sullivan was also convicted, Count 1, of an indecent assault. The issue which separated the evidence of the Complainant and Mr O'Sullivan on this count, was whether or not there was any consent.

Consistently with our view on Counts 3, 4 and 5, this was a matter upon which the jury in making the determination, had a decided advantage.

We would not be inclined to uphold the appeal on this Ground.

In the result, on the Ground asserting that the verdict of the jury against each of the appellants was unreasonable and not supported by the evidence, we would propose that the appeal by NRH be upheld and that he be acquitted of the Counts against him. With respect to the remaining three applicants, we would not uphold this Ground.

Conclusion

For reasons given earlier we consider that, in relation to O'Sullivan, Tohu and Flanders, there should be a new trial by reason of the fresh evidence and as result of a combination of the errors which have been identified in the way the trial was conducted.

In our opinion the following orders should be made:

(1) Appeals of each Appellant allowed.

(2) Quash the convictions of the Appellants.

(3) In respect of the Appellant NRH enter a verdict of acquittal.

(4) In respect of the Appellants O'Sullivan, Flanders and Tohu order a new trial in respect of Counts 1, 3, 4 and 5.

**********

Amendments

25 April 2014 - Publication restriction removed

Amended paragraphs: Coversheet

Decision last updated: 25 April 2014

Medium Neutral Citation:	O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45
Hearing dates:	23 March 2012
Decision date:	18 September 2012
Before:	McClellan CJ at CL at [1] Davies and Garling JJ at [24]
Decision:	In our opinion the following orders should be made: (1) Appeals of each Appellant allowed. (2) Quash the convictions of the Appellants. (3) In respect of the Appellant NRH enter a verdict of acquittal. (4) In respect of the Appellants O'Sullivan, Flanders and Tohu order a new trial in respect of Counts 1, 3, 4 and 5.
Catchwords:	CRIMINAL LAW - aggravated sexual intercourse without consent - appeals against conviction - fresh evidence - whether credible - admissions by one appellant - in adequate directions about use of admissions - directions regarding consent under s 61HA and at common law - no distinction made for offences for which s 61HA not applicable - rejection of evidence held to be concerning sexual reputation - distinction with sexual disposition - whether verdicts unreasonable.
Legislation Cited:	Crimes Act 1900 (Cth) Crimes (Sexual Assault) Amendment Act 1981 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1906 (WA)
Cases Cited:	Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 Ka Chung Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169 M v The Queen [1994] HCA 63; 181 CLR 487 Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Condon (1995) 83 A Crim R 335 R v Pemble [1971] HCA 20; (1971) 124 CLR 107 R v Tangye (1997) 92 A Crim R 545 Ratten v The Queen (1974) 131 CLR 510 Re Conlon (1993) 69 A Crim R 92 RH v R [2011] NSWCCA 98 SKA v The Queen [2011] HCA 13; 243 CLR 400 Taylor v R [2009] NSWCCA 180 Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602 WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
Category:	Principal judgment
Parties:	Bradley John O'Sullivan (Appellant) Shay David Flanders (Appellant) Manuel Tohu (Appellant) NRH (Appellant)
Representation:	A Francis (for the Appellant O'Sullivan) G Brady (for the Appellant Flanders) P Doyle (for the Appellant Tohu) P Rosser QC (for the Appellant NRH) J Pickering (Crown) O'Brien & Hudson Solicitors (for the Appellant O'Sullivan) Legal Aid NSW (for the Appellant Flanders) C Hammond (for the Appellant Tohu) Intercept Law (for the Appellant NRH) Solicitor for Public Prosecutions (Crown)
File Number(s):	2008/13734; 2008/13735; 2009/7289 & 2009/10832
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-05-03 00:00:00 Before: King DCJ File Number(s): 2008/13734; 2008/13735; 2009/7289 & 2009/10832

Count	Principal	Sexual Activity
2	NRH	Penile/vaginal intercourse
3	O'Sullivan	Fellatio
4	Tohu	Fellatio
5	Flanders	Attempted penile/vaginal intercourse
6	Unknown	Anal intercourse
7	Flanders	Penile/vaginal intercourse