R v Shanmugam

[2020] NSWDC 482

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Shanmugam [2020] NSWDC 482

Hearing dates:

17 August 2020, 18 August 2020, 19 August 2020, 20 August 2020.

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Verdict of guilty to all counts.

Catchwords:

CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - conflict of evidence - reasons for accepting witnesses – reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt

CRIMINAL PROCEDURE - Trial - Judge alone - Sexual offence proceedings - fundamental principles explained

Legislation Cited:

Crimes Act 1900

Criminal ProcedureAct 1986

Cases Cited:

De Silva v The Queen [2019] HCA 48

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

LiberatovThe Queen [1985] HCA 66; (1985) 159 CLR 507

R v Murray (1987) 11 NSWLR 12

Category:

Principal judgment

Parties:

Mithun Kumar Shanmugam (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr B Hart (for the accused)
Mr D Noll (for Director of Public Prosecutions)

Solicitors:
A.R.Yates & Co Solicitors (for the accused)

File Number(s):

2019/00018999

Publication restriction:

The name of the complainant is not to be published, nor is any other information or material that could lead to the identification of that complainant. Accordingly, in this judgment the Complainant is referred to by a pseudonym and each of the witnesses is referred to by a pseudonym which will not be their real initials: s578A of the Crimes Act 1900.

Judgment

Introduction

1. On 17 August 2020 Mithun “Matt” Kumar Shanmugam, the accused, was indicted and said he was not guilty of five serious offences; two counts of unlawfully sexual touching (s61K(a) Crimes Act 1900); two of sexual intercourse without consent knowing a person was not consenting (s61I Crimes Act 1900) and one attempt sexual intercourse without consent knowing a person was not consenting (ss 61I & 344A(1) Crimes Act 1900).

2. The accused had elected for trial by judge alone. That application was opposed by the Director of Public Prosecutions (DPP). On 10 July 2020 I ordered that the accused be tried by judge alone: s132 Criminal Procedure Act 1986: see separate reasons.

3. As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdicts reached.

Directions

Onus

4. The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Elements

5. It is not in dispute that on 7 January 2019 the accused and the complainant were together in Mangerton. Accordingly, the critical elements that must be proved beyond reasonable doubt are:

Counts 1 and 3:

6. That the accused:

1. Sexually touched the complainant without her consent and

2. He knew at the time she was not consenting to the sexual touching.

Count 2:

7. That the accused:

1. Attempted to have sexual intercourse with the complainant without her consent and

2. He knew at the time she was not consenting to the sexual intercourse.

Counts 4 and 5:

8. That the accused:

1. Had sexual intercourse with the complainant without her consent and

2. He knew at the time she was not consenting to the sexual intercourse.

9. Each of the acts alleged to found a count were put in dispute. It is not in serious dispute however that had the accused done what was alleged it would be either sexual touching or sexual intercourse or attempt sexual intercourse.

10. Sexual touching requires proof that a person touched another with any part of their body, in circumstance’s where a reasonable person would consider the touching to be sexual: s61HB Crimes Act 1900.

11. Sexual intercourse here, relevantly, includes penetration by the penis of the accused to any extent of the anus or vagina of the complainant: s61HB Crimes Act 1900.

12. To prove an attempt (Count 2) the prosecution must satisfy me beyond reasonable doubt that the accused intended to have sexual intercourse with the complainant and that he actually embarked upon the commission of the crime that he intended to commit.

13. In addition, before a guilty verdict can be returned I must find beyond reasonable doubt not only that the act alleged occurred but that it was done without the complainant’s consent and that the accused knew she was not consenting.

14. Consent here means free and voluntary agreement. Consent given reluctantly or after persuasion is still consent. Absence of consent can be conveyed by words or actions but the fact a person did not physically resist sexual intercourse cannot, of itself, be regarded as consent to sexual intercourse. A person does not consent to a sexual activity if they do not have the opportunity to consent to the sexual activity because they are unconscious or asleep.

15. The prosecution must also prove beyond reasonable doubt that the state of mind of the accused at the time was that he knew that the complainant did not consent to sexual intercourse. A person who has sexual intercourse with another who is not consenting knows they are not consenting if either:

1. He knows the other person does not consent. That is, he did not honestly believe the person was consenting or that if he did have an honest belief there was consent, that he had no reasonable grounds for that belief. Such personal knowledge can be inferred from all the proved circumstances; or

2. If the person is reckless as to whether they are consenting or not. This depends on what is in the mind of the person accused. Again, this can be inferred from all the proved circumstances. An accused can be reckless if his state of mind was such that:

1. He failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with his mental capacity if he had turned his mind to it, or

2. He realised there was a possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not; or

3. If they have no reasonable grounds for believing the other person is consenting. Again, this can be inferred from all the proved circumstances

16. All the circumstances of the case must be considered when making a finding about knowledge a person is not consenting. These include the steps taken to ascertain whether a person is consenting or not. One circumstance cannot be taken into account – I must ignore any effects on the accused of intoxication by drugs or alcohol. I have to consider what would have been going on in his mind if he had not ingested drugs or alcohol.

17. If prosecution have not proved beyond reasonable doubt the accused had a guilty state of mind the charge has not been proved and the accused must be found not guilty.

18. If in relation to a specific Count if I am satisfied beyond reasonable doubt that the accused did the act alleged with the complainant; that is, sexually touched her, had sexual intercourse with her or attempted anal intercourse with her, and, that she did not consent, and, that the prosecution has proved the accused knew that she was not consenting, he can be convicted of that specific count. Each count must be considered independently and individually, I cannot reason that because one offence was committed he must have committed them all.

19. If I entertain a reasonable doubt concerning the truthfulness or reliability of the complainant's evidence in relation to one or more counts, that doubt must however be taken into account when I come to assess the truthfulness and reliability of the complainant's evidence generally and when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.

Evidence

20. The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial as it involves drawing inferences from proved facts, particularly about the accused’s state of mind. I may not, as a matter of law, find the accused guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than the guilt of the accused.

21. Some evidence was not in dispute - some was contested. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments.

Assessing witnesses

22. For most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.” Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

Delay

23. While a complaint was immediate (the “Help” text at 9:15am) there was a delay of a week before the complainant went to police and then the next day provided her formal statement. Such delays do not necessarily indicate that the allegation is false. There may be good reasons why a complainant in a sexual assault may hesitate and delay making, a complaint about such an assault: s293 Crimes Act 1900.

Inconsistency between complaints

24. There is evidence of some inconsistency between the first complaint to police and the formal statement made the following day. The complainant did not tell every complaint witness all the details of all the assaults alleged. Mr Hart for the accused submits that that those inconsistencies and differences are relevant to the complainant’s truthfulness and reliability.

25. I must assess, with care, whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability. But I remind myself that the experience of courts over many years has shown that; trauma, if it was suffered by a complainant may affect people differently and that both truthful and untruthful accounts of a sexual offence may contain differences. This is because people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. It is thus relatively common for there to be differences in accounts of a sexual offence: s 293A Crimes Act 1900.

Complainant

26. The prosecution relies upon what the complainant said after having been — as she said — sexually assaulted by the accused, as further evidence that such assaults did occur. There is no doubt complaints were made but the question I must ask is: does it support the prosecution case because it makes her evidence more believable. I must also consider if there is a consistency between the complainant’s conduct and the allegation she makes against the accused. I need to consider the complaints in context, noting what was said to whom and when the complaints were made. I can use what others say she said about the accused’s conduct toward her as some evidence of the truth of what she said; that is, as evidence that the accused did sexually assault her in the way she alleges he did.

27. Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become true or reliable just because it is repeated on one or more occasions.

Accused’s Evidence

28. The accused gave an account to police on arrest: Exhibit F. The accused also gave evidence in answer to the case led by the prosecution. By doing so he assumed no onus or responsibility for proving his innocence. There is no obligation on him to persuade me to accept his evidence. It is for the prosecution to satisfy me beyond reasonable doubt that I should reject what he said and find that it was not a reasonably possible version of the facts.

29. There is a conflict between the version of events given by the accused and the complainant. It would be wrong if guilt or innocence turned upon a simple choice between two inconsistent versions. My decision is not simply one of which version do I prefer. To the contrary:

1. If I believe the accused’s evidence I must acquit;

2. If I do not accept that evidence but I consider it might be true, I must acquit; and

3. If I do not believe the accused’s evidence I should put that evidence to one side. The question then remains: has the prosecution, on the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt? De Silva v The Queen [2019] HCA 48.

Why lie

30. When he cross-examined the complainant Mr Hart suggested she made up the allegations because she was jealous as the accused had interrupted their foreplay by asking about GH and because she felt she had been rejected by him. She did not accept that proposition. Mr Hart repeated those assertions in submissions.

31. Where the defence directly assert a lie was told by the complainant they do not have to prove she had a motive to lie or what that motive might be. The onus of proof never shifts. If I accept there was some motivation that may undermine the prosecution case but my task does not include speculating about whether there is some reason why the prosecution’s key witness would lie and make up a story. And, it does not mean I should acceptance of her evidence unless some positive answer to the motive question is given by the accused. Again, the onus of proof never shifts.

Character

32. There is evidence from Detective Simpson that Mr Shanmugam has no criminal convictions. In his interview with police Mr Shanmugam put himself forward as a good person who was aware of his moral and legal obligations to obtain consent to sexual contact. I can take that evidence into account when considering the question of his guilt. That he is a person of good character entitles me to consider the improbability of his having committed the offence alleged. Further, when considering his evidence I must bear in mind that it was made by a person of good character and must take that fact into account in deciding whether I accept his evidence.

33. None of this provides the accused with some kind of defence. Obviously, people can commit a crime. It is only one of the many factors, which I must take into account in determining whether I am satisfied beyond reasonable doubt of his guilt.

Evidence Summary

Uncontroversial facts

34. Mr Shanmugam was born in 1995. The complainant, “Susie”, a pseudonym, is now 31 years old.

35. In 2019 they worked together at Wollongong event centre; she in the kitchen, he as a waiter and function manger. They lived close to each other in Mangerton, a suburb of Wollongong.

36. On Sunday 6 January 2019, the accused and the complainant attended a work Christmas function at a bar in central Wollongong. The accused and the complainant drank and socialised with each other and other work colleagues throughout the evening.

37. At about 11:00pm GH, one of their workmates, was taken back to the complainant’s house because she was heavily intoxicated; GH did not want to return to her family home in that condition. The complainant, the accused and other colleagues continued to celebrate and moved on to another bar in a local club. CCTV from the club and photographs taken afterward shows a fairly normal interaction by a group of young friends who had a pleasant night out drinking and partying. While both the accused and the complaint were obviously close and touched at times they both had similar interactions with other friends. One friend of the accused obviously thought that there was some spark between the accused and the complainant as he sent a text to him at 2:25am encouraging him to “have a crack…”: Exhibit H.

38. Later that evening the complainant and accused left the bar with two other colleagues and walked around central Wollongong looking for a kebab to eat. Nothing was open so they went by taxi to a McDonalds in Fairy Meadow. After eating the four of them again caught a taxi. Two friends were dropped off at their homes, and the accused and the complainant went back to the complainant’s house in Mangerton. In doing so they drove past the accused’s home which was about an 8 minute walk from the complainant’s.

39. After they got to there, GH woke up and came down stairs to socialise with them. They watched a show on TV. The three then went upstairs to the complainant’s bedroom. There the complainant and the accused smoked some cannabis. All three showered. A movie was put on and all three lay on the bed. After watching the movie for about five minutes they all went to sleep with GH on the right, the accused in the middle and the complainant on the left. The women were wearing pyjama tops and night shorts. The accused was wearing only his boxer shorts.

40. So much is not controversial.

Complainant’s version

41. The complainant gave this account of what occurred after GH went to the bathroom: TT pp. 9-13. She did not change that evidence during cross-examination.

42. The complaint told GH she was not concerned about the accused staying in her bed as she had told him she didn’t want a relationship and GH was there. She said they were good friends and that she treated him as “one of the girls:” TT p. 8.

43. She said she was woken twice by GH going to vomit in the bathroom. On the second occasion she saw that the accused was masturbating. He then rolled toward her and lay against her in the spooning position. He was masturbating, with his hand against her night shorts; she still facing the wardrobe pretending to be asleep: Count 1.

44. He then pulled his penis further out of his boxers, pulled her night shorts to the side and tried to, with force, to press his penis into her anus. Force was used. It was painful. That pain was on her anus. She brushed him away as quickly as she could: Count 2.

45. After she brushed him off she rolled onto her back to try and stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand: Count 3. She brushed him away, rolled onto her side. He kept saying to her "Susie...Susie."

46. She ignored him. She pretended to be asleep. She was in shock. She didn’t know what to do.

47. He then got into the spooning position again. He pulled her night shorts to the side and tried to insert his penis into her vagina. He got it about halfway in but she moved and brushed him away quite abruptly: Count 4. She kept her eyes closed. She could feel the tears rolling down her face at that point.

48. She then felt and heard him reach over the edge of the bed. She heard a sound like he was trying to open a condom wrapper. During that time she got her phone from under her pillow and quickly SMS messaged GH, "Help." She then flicked her phone under the bed.

49. She then heard GH cough from the ensuite bathroom. She pretended to wake. She said, “She’s been in the bathroom a while.” The accused said, "No, she will be OK," She lay back down and he inserted his penis again but this time it went all the way in. When he put his penis inside her she felt the condom: Count 5. She brushed him off and jumped up, and went to get GH from the bathroom. Contrary to a submission advanced by the Mr Hart for the defence in closing, I did not interpret what was said or recorded in the transcript as the complainant alleging the accused inserted his condom covered penis twice, in evidence in chief she was simply going over the same and last incident: TT p. 12 & 13.

41. She said she complained to GH that morning and later spoke her friend AG, who told her to “confront him.” She sent the accused the SMS in Exhibit 3. She also had an SMS conversation with GH. She told me the matter was discussed at work but that she did not feel comfortable with the arrangements made as she and the accused were both working at the same venue and left soon after.

42. She said it took a few days before she went to police. Initially she spoke to Constable Philips about whether she would or would not make a formal complaint and what might happen if she did:

“I don't recall what I had said to her. It would've been that, but I don't remember what I had said. That’s what I did say in my following statement. At that time I was just getting an idea of if I was to report it, what would happen, as I was still not sure if it was something I was strong enough to do”: TT p. 59

52. At the time she said she was reluctant to discuss “intimate details…when I was not in a good place.” TT p. 61

Complaint evidence

53. GH told me as she went upstairs with the accused to watch a movie he asked her to sleep down stairs, so, she assumed, he could be alone and have sex with the complainant. The complainant on the other hand asked her specifically not to sleep downstairs. After they woke later that morning the complainant told her in written text he’d put a condom on and stuck it in. And later over breakfast that he been masturbating and then put a condom on and “went for gold.”

54. GH’s messages to both the complainant and the accused were set out in Exhibits C and D. It appears she was concerned for both of her friends and was trying to be consolatory. Both were her friends but reading both exhibits together indicates her greater sympathy was for the complainant. This does not mean her credibility was damaged; to the contrary she appeared honest and frank and was not obviously dissembling. Her testimony was consistent with what was set out in the texts exhibited, which started with the 9:12am text received from the complainant - “help” to the accused telling her at 9:12pm that he was a “fuckwit” and that what he did was “bad and unacceptable.”

55. RV, a manager at the function centre and at the time, but not now, the complainant’s best friend, said that on the morning of 7 January she received a message and was later told during a telephone call by the complainant that “Matt had felt her up.” When they spoke a few days later the complainant said “Matt raped me.”

56. She also spoke to others at work. It is not surprising that she did not give all the details. She was under no obligation to do so. Nor is it surprising that those to whom she spoke may remember the events differently than she now does. The same point can be made about the accused’s explanation to RV [see para below].

57. On 14 January 2019 the complaint went to Wollongong Police Station she spoke to a general duties officer Leading Senior Constable Philips. She discussed her allegations with her and went through her options and what the process would be should a formal complainant be made. She did not tell the Constable about all the events and she said they commenced about 5 am. The Constable entered her version of the conversation on the police events or COPS system. The next day the complainant returned to the Police Station and spoke to Detective Simpson who took a detailed statement from her. It was that statement that founded the allegations set out in the Indictment

The text messages

58. At 2:25am one of the accused’s work friends, who had been at the Christmas party, sent him a text message saying “Have a crack mate. No Dommy. Just don’t blow inside (wink face) great to see you. Enjoy”. The accused responded “Hahahahhhaa thanks bro. I’ve got condoms now. Hopefully. Something happens”. The friend replied “ATA boi. Go hard or brutal”. The accused then replied, “U should know it mate jack hammer always. Thanks for the push mate really appreciate it”.

59. At 9:12 am on 7 January 2019 the complainant sent a text message to GH’s phone saying “Help.”

60. That afternoon at 2:31pm the accused sent a text message to the Complainant. The following conversation then took place:

Accused

“Thanks for having us Susie. Sorry if it was too much trouble. Ps hope you’re feeling better.

Complainant

“What was that last night?”

Accused

“Um what do u mean? Did I do something silly. Omg no. I’m so sorry Susie. I shouldn’t have had that cone while I was drunk. I feel really bad and embarrassed right now. If I did something stupid I’m very sorry wouldn’t happen again”

Complainant

“I get that I was drinking but we are friends. I was asleep matt, I had just spent all night saying I don’t want to sleep with anyone at work and cross that line, and without consent you tried to put it in. I pulled away multiple times”

Accused

“Omg omg no no. Shit. Fuck what have I done. I’m so so so sorry Susie. Omg I feel like a total tool. I’m so sorry. This is way out of line. I’m extremely sorry. How can I make this right Susie coz right now I feel like killing myself. Susie right now you have every right to be angry at me and you have the right to feel disgusted at me. What I have done is very unethical extremely rude and very inappropriate. For what I’ve done I don’t deserve you as a friend. I’m extremely sorry from the bottom of my heart. I honestly had no intention of hurting you like this and never even thought of doing anything like this. I don’t know from where this behaviour came out and I’m deeply disappointed and disgusted with myself. I deserve any punishment you can think of. Again I had no idea I would do this someone I deeply care about. And I regret every single minute. I wish I could undo this in whole. Please please accept my apology for what I’ve done I shouldn’t be alive. Take your time and let me know if I’m allowed to call you to apologise. I am extremely sorry Susie”

Complainant

“Please don’t speak like that matt suicide isn’t something to joke about. I won’t be crossing my work & personal life anymore because it’s making me not want to go back to work which isn’t your fault my behaviour when I drink isn’t acceptable. I’m going through a really hard time with my family and my inner self so drinking was stupid when my mental state is already in a bad way. I shouldn’t have drank and I won’t be again. I take complete responsibility for my skanky behaviour and if I gave you the wrong impression or I was flirting I apologise I know how I come across when I drink, but you have always had my back, and I thought I could trust you not to take advantage but as I said I take responsibility, I put myself in that situation so what can I say. I don’t want to upset you, I just froze matt I didn’t see you being that guy. I asked you to walk me home because I knew you would look out for me and stop me doing something stupid”

Accused

“I truly am sorry Susie. It isn’t your fault Susie please don’t beat yourself up. Like I said before I never has any intention of behaving to you the way I did. It is extremely wrong of what I’ve done and it was the mix of alcohol and weed. I’m gonna give up alcohol now. It’s completely fair that I have lost your trust and I will do anything to get it back. I never intended to hurt you and I never will. This will be the first and last.

Please don’t blame yourself. I’m extremely sorry for my sick behaviour. I wish this was all but a bad dream. I understand your opinion and your respect towards me is lost. But I will do everything to gain your trust back. Like I always said you’ve been a good friend to me all this time and taken care of me all the time. Once again I’m extremely sorry I will never ever do something like this to you or anyone. I’m just extremely disgusted at myself and I would give up anything to undo this”

Complainant

“You don’t need to give up drinking I do, smoking doesn’t help either so that’s gone to. I’m just reverting back to being alone. I thought having friends around would help what I’m going through, but it’s just made everyone’s lives worse. I know you’re a good person matt, I don’t want this to make you feel like you’re a horrible person, because you aren’t. I should have been clearer, not dressed a certain way, and not been so touchy-feely at work & so on, I liked that I could be that way with you as a friend, but I can see 100 how it comes across and how things got misconstrued. It’s just going to take some time, but I appreciate your apology, & I don’t want you feeling so negatively you don’t want to live”

61. At about 3:00pm on 7 January 2019 the accused sent GH a text message. They had the following text message exchange:

Accused

Oh ok. Coz Susie just messaged me. I feel super embarrassed”

She just wrote what was that last night?! Between us. What did I do. Did I do something inappropriate

GH

Yeah you did, you tried to have sex with her and she got really upset and you kept telling me to go downstairs and leave you two alone she didn’t want me to leave her alone with you so I didn’t”

In response to what GH said the accused responded

Accused Omg. Fuck I’m so so sorry”… Oh Jesus I feel like a total tool now. I’m extremely sorry GH if I have hurt u in anyway. I don’t deserve you guys as friends. I’m such a fuckwit. Oh no what have I done”.. “No GH What I’ve done is extremely bad and unacceptable. I feel like killing myself now”

Accused’s evidence

62. The accused was arrested on 17 January 2019. He was cautioned and agreed to be interviewed by Detectives Simpson and Sutton. He told police he was not anticipating being arrested. The detectives asked first for his version of events. They then put the complainant’s version to him. They then tested some of his assertions by reference to what the accused and complainant had said in their text messages of 7 January 2019: Exhibit C.

63. The accused’s account to police is important - as when he gave evidence on 19 August 2020 he agreed with his counsel’s suggestion that what he told police was a true account and he did not repeat that account in evidence.

64. The accused told police that he was working part-time at the event centre and studying a Masters of Science, Logistics and Project Management at the University of Wollongong. He is an Indian national who was in Australia on a student Visa.

65. He said he and the complainant were mutual friends who knew each other well and that both had been drinking at the party. His account differed however from the complainant’s in important respects.

66. He said that he had not intended to go to the complainant’s or stay at her house that night but she insisted. He said it was the complainant who had initiated sexual contact by first masturbating in his presence and then by backing towards him with her behind and encouraging him to spoon her.

67. He said at that point GH was in the toilet and made a noise from the toilet. It was then that the complainant went in to her. He said only then did he get out and put on a condom; thinking she was keen and presuming they would have sex when she returned from checking on GH. However, when the complainant came from the bathroom she went downstairs with GH.

68. He said that when he first got the message he apologised as he thought that as she is a close friend, that rubbing against her while they were spooning was the wrong thing to have done. He felt that he had misread the signals she was sending by her behaviour earlier that evening by her cuddling and touching him, the clothes she was wearing, her insisting he stay at her home and in her bed and her having him undo a button on her skirt while downstairs while they were on the coach. He said after her apology to him in the text message and her acceptance of responsibility he thought she was apologising because things got misconstrued. He said that the complainant was very drunk and that he too was intoxicated.

69. He said her behaviour could be regarded as “…seducing…the way she dressed that night…..she was just rubbing my chest and everything, I thought maybe she was keen.”: Q & A 217-218.

70. He said he appreciated her text apology but he said he still feels bad because what he did was “not proper.” He said he had an apologetic personality and he always asked permission before he does anything; as he does when he is working at the restaurant. If someone complains he just fakes a “smile because you’ve got to put out to customers… when you’re serving as a waiter.”: Q & A 64-65

71. He said initially that he had not read the messages before replying particularly the message “you tried and put it in and I pulled away multiple times.”

72. He said he didn’t read the message before he replied to it. He said initially he only read the messages last week: Q & A 164. But at Answer 239 he said he didn’t read the message till the end of the conversation, “that’s when I went back to read the messages.”

73. He denied all of the complainant’s allegations. He said he had not masturbated - he wouldn’t do that when someone was there.

74. He said as an as an Indian he would never do any like this. He explained he had been to boarding school and studied. He lived alone. He did not cuddle with Indian girls. When asked by the detectives why did you think it’s so bad about cuddling and spooning he said “I dunno, not used to it. I live by myself not used to all this….. That’s what I thought in, was inappropriate. That’s why I started apologising”: Q & A 179-181.

75. He explained why he put on the condom and said that later he had put it in a bin.

76. He also indicated his knowledge of the need to get another person’s consent and said “…I wouldn’t have done, I still would not do this to anyone without anyone’s consent.”: Q & A 219. He reiterated he always double checks before you do anything. And he always wears a condom or two condoms.

77. He said he didn’t say anything later at work because he didn’t want to say anything in order to protect her reputation: Q & A 229.

78. In evidence on 19 & 20 August 2020 the accused again denied each allegation. He expanded on some matters set out in his police interview. He said the complainant had told him days before that she did not want to have a relationship with anyone from work but that she did not repeat that remark to him the night of the party. He said there were times that night that the complainant’s words and behaviour made him think she wanted him to come home and sleep with her: particularly after they left the club and she remarked “One way or the other I’m going to have kebab tonight!” He said in response before they caught the taxi to McDonalds he dropped in to 7-11 store and bought a small packet of condoms.

79. He told me he made a number of attempts to go home that night both before he got to the complainant’s home and while he was there. He said she was aggressive to him and made him stay with her. He was taken by Mr Hart to the text from his friend at 2:25am. He said he received and responded to it while he was down stairs at the complainant’s home. He said it prompted him to ask GH if she would sleep down stairs but later when she did not did so he made other attempts to go home.

80. Mr Shanmugam explained that he was very respectful toward women and that he understood that before sexual contact the other parties consent was required.

81. He explained his text response to the complainant and GH by saying he did not read or take in the exact allegations being made and as he told police asserted that he was apologising for cuddling the complainant or any other things he may have done that caused embarrassment like crying while drunk. He said he is by nature and training as a waiter submissive and will apologise in the face of aggression until he finds out what the issue is and then he sorts it out: TT 182

82. He said he feared he had been disrespectful toward the complainant and the way he was brought up in a boarding school in Tamil Nadu and in his Indian culture to cuddle a girl as he did the complainant would be so regarded. He explained that was why he responded as he did to the SMS messages from both the complainant and GH.

83. In cross-examination he explained that he did not read or take in the importance or the exact words used by the complainant in her text when she accused him of “without consent, you tried to put it in.”: TT p. 200. But, that he had read it before his text conversation with GH. he said again he responded to her texts immediately without reading all of what she said but that he did note that the allegations were different as GH said” “Yeah, you did, you tried to have sex with her” TT p. 201.

84. He said he was trained at school to use eidetic memory techniques and that he had used this process after the event to put together what had happened and remember it: TT p. 206.

85. He said that he had returned to his home before 8:00am; as that was he arrived home before his housemate who arrived soon after. His housemate works night shift and he is always home at 8:00am. In cross-examination he denied this was a recent invention to undermine the force of the complainant’s 9:12am “Help” message to GH: Exhibit C.

86. He accepted the proposition that before he commenced his interview with police he thought that they may have discovered, and taken DNA from, the condom that he left in the complainant’s bathroom but he denied having made up his story about the condom to devalue importance of that possible piece of damning evidence.

Submissions

87. Mr D Noll, solicitor advocate, for the Director of Public Prosecutions, submits that I would find the complainant was an honest, reliable and accurate witness; a witness who made appropriate concessions. He said her complaints were immediate and consistent. And, that any discrepancies could be readily understood by taken into account the trauma she suffered, the indifference of the management at work, and her turmoil in deciding what to do and the consequences of reporting the matter to police.

88. He said I would not reach the same opinion about the accused who he said had tailored his account both to the police and to me and continued to do so while under cross-examination. He cited the accused’s evidence about the condom as an example. He said the accused account was fanciful and his texts could only be understood as admissions by him that he had offended against the complaint as alleged. He said no other possible reason could explain the accused’s threat that as a consequence he would take his own life.

89. He took me through the elements that had to be proved and suggested some directions of law. He agreed with my suggestion that given the accused had told us that he understood issues relating to consent that the Crown case was that not only was there evidence that the complainant had not consented but that the accused actually knew she did not consent. And, that if I accepted the events particularised in the five counts occurred I would find each offence proved beyond reasonable doubt.

90. Mr B Hart of counsel, for the accused, took me through the evidence and asked I give the accused the benefit of what he submitted where considerable doubts about the complainant’s version of events.

91. He asked for a Murray direction (R v Murray (1987) 11 NSWLR 12) and submitted that s294AA Criminal Procedure Act 1986 did not apply to a judge alone trial. I rejected that submission: see separate judgment. He asked that I apply LiberatovThe Queen [1985] HCA 66; (1985) 159 CLR 507 and carefully scrutinise the evidence of the complainant. I said that while corroboration not required given that the onus of proof remains on the prosecution throughout I would examine the complainant’s and each prosecution witnesses’ evidence very carefully before I acted on it.

92. Mr Hart submitted that the complainant was not at all clear in her evidence even to the number of instances of penile vaginal intercourse: TT p. 12-13.

93. He contrasted what she said the court with what she said to Detective Simpson, Constable Philip, GH and RV. He said the versions given were not consistent or reliable.

87. He asked I read the texts in context. They were written by a man who was very concerned about respect for women who by nature and training as a waiter was used to taking an apologetic stance when confronted. A man who would, as he said in evidence, feel his actions in cuddling the complainant showed disrespect for her and was something he should accept responsibility and profusely apologise for, by, as here, a “stream of consciousness” reply.

88. He said the accused’s account was given by a man of good character. It was plausible that the complainant had over the night let the accused know she was keen. He woke to find complainant masturbating and he moved over to her and cuddled her expecting sex. He said it was he who suggested she check on her friend in the bathroom. Mr Hart said that I could presume that the complainant would have felt “utterly rejected, embarrassed and jealous” of the attention shown to her friend by the accused and that her subsequent false complaint had made him “the victim of his own conscience”.

Consideration

The accused

96. The only element seriously put in dispute by the accused is whether the acts alleged occurred at all. Mr Shanmugam admitted in his account to police and his evidence at trial that he was aware of his moral and legal responsibilities in relation to obtaining consent. His case is that he initially rejected or failed to respond to an apparent advance by the complainant and that although keen enough to put on a condom in anticipation of consensual sex – nothing happened.

97. The accused was not an impressive witness. In his account to police and in his evidence he raised, at times subtly, at times too blatantly, matters designed to paint the complainant in a bad light: she was drunk before she got to the party, she was flirty, she was aggressive, she sat on another man’s lap, she behaved seducingly, she was crude in reference to his anatomy, she aggressively demanded he come back to her home and stay with her despite his repeated attempts to leave and go home. These comments do not sit well with his purchase of condoms before going to McDonalds or his text exchange with his friend at 2:35am “hopefully something happens.”

98. I am prepared to accept that the accused is a sensitive man and apologises too readily. I accept he was inexperienced and inexperienced with Australian women. But he understands issues about consent and that he needed to be 100% sure before engaging in sexual relations. He may well have misinterpreted the complainant’s behaviour and thought as he said to his friend in the 2:25am text that “hopefully something happens”: Exhibit H. But that said his evidence does not ring true. It glosses over the obvious - the texts. He seeks to blame the complainant and plays up her ‘apology.” His account was a reconstruction of events designed to meet what he anticipated would be said against him; designed to answer what he knew would be alleged. He knew what would be alleged because he well know what he did that morning.

99. His account failed to address the following questions that arise from the his own case-

1. If the complainant was keen why didn’t they have sex as she obviously wanted - there being opportunity in that GH was very drunk and absent.

2. Why if on his account the complainant never saw him put on or take off the condom did she specifically say he put it on before the acts said to constitute count 5. His raising of the condom with police indicates he wanted to diffuse a potentially damaging piece of evidence and shows he had thought out in advance how he might deal with the allegations.

3. If he had not done anything untoward to the complainant why reply “OMG omg no no. Shit Fuck what have I done” in response to her initial accusation “you tried and put it in and I pulled away multiple times.” I cannot accept his assertion he did not read the whole text. His response is not at all consistent with his explanation. His use of cultural differences relating to respect for women as an excuse again shows calculation and can only be regarded as an attempt to explain away the inexplicable.

4. Why then tell GH “what I’ve done is completely bad and unacceptable” if he had not done something completely bad and unacceptable. If nothing had happened a denial was called for at that point. There was no need to be so apologetic or apologetic at all about what he said was a brief and short and consensual cuddle, not markedly different to his account of what occurred on the lounge downstairs while watching TV.

5. If he had not done the thing alleged why threaten suicide – such a threat can only be both an admission of the enormity of what he had done and an attempt to dissuade the complainant from taking the matter further.

100. The answers to police questions were contrived. They were not convincing. They did not become any more convincing when given on oath. His response to the accusations at first and at trial is to apologise, appear submissive until he sorts things out and formulates a response, a solution that may work to his benefit. His responses at trial were contrived. He has constructed an exculpatory version of events, after the event. He continued to do so while in the witness box when he told me the time he returned home was before 8:00am. Notwithstanding the accused’s good character, I find his account to be untruthful in significant respects. I can comfortably reject the accused version of events.

The complainant

101. The complainant was an impressive witness. Her answers were clear and direct. She was not shaken in cross-examination. Her account was consistent. She was under no obligation to detail every act done to her when she spoke about the events to GH and others but she more than adequately conveyed to GH and others what had been done to her. That the complainant in evidence could not remember details of each complaint is not at all surprising, nor does it devalue her credibility. She did not meet with Constable Philip to give a detailed account but to outline what had happened to her so she could discuss her options. Again, that is not unusual and neither it nor the week long delay in making the formal complaint diminished the power of her evidence.

102. She only provided a comprehensive account when she sat down with Detective Simpson on 15 January but until then she had no obligation or need to spell out exactly what the accused had done to her or to give others all the intimate details.

103. The attack on her because of alleged inconsistencies was forcefully rebutted by her and did not resonate with me. Her credibility as a witness was not dented. It is, as I must now direct myself, not at all uncommon for people not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. This case illustrates why that direction is now mandated.

104. During her cross-examination she at times volunteered answers beyond what was asked of her but those responses were generated by questions that demanded explanation or questions that carried an implication that she could not accept.

105. She described each act charged as a count. She was clear in her rejection of the suggestion any were with her consent. If accepted beyond reasonable doubt, her version of events proves each count.

106. She was familiar with the accused. She did cuddle him at the club, as both she and he did others. The CCTV footage shows she was no more familiar with him than she was with other friends that night. Nothing in that behaviour could be regarded as an invitation for a sexual encounter. She may have snuggled on the couch while watching TV downstairs but that could not be regarded as an invitation for a sexual encounter.

107. She did let the accused sleep in her bed but again, in the circumstances, that could not be regarded as an invitation for a sexual encounter. To the contrary I accept that she asked her friend GH not to sleep downstairs and leave her alone with the accused.

108. Her own self-analysis when texting GH and saying she was disappointed she had put herself in this position is not an admission she consented to what occurred. The complainant’s self-blaming cannot of itself be regarded as diminishing her credibility.

109. Her disappointment that the accused had breached the trust she had in him as a close friend was palpable but that provides no foundation for her to invent a story. The reasons put for her inventing a story were rejected by her. They cannot withstand close analysis, but I direct myself it is not for the defence to prove she had a motive to lie and my rejection of those propositions does not advance the prosecution case.

110. It is important to note however, that if both she and the accused wanted to have consensual sexual intercourse that night there were opportunities for it to happen but on both versions there was no consensual intercourse.

111. I can accept the complainant’s version of events it was convincing it was consistent from the first “Help’ at 9:12am on 7 January 2019 to her telling me on 17 August 2020 she did not consent to any of the activity alleged.

Conclusion

112. Having rejected the accused’s version and accepted the complainant’s I must now go to the critical issues that must be proved beyond reasonable doubt.

113. The acts alleged occurred. The complainant did not consent. Being flirty or skanky, cuddling, wearing sparse summer clothes, drinking and smoking a bong are not indicators of consent to sexual intercourse. In some situations cuddling and flirting or spooning can of course be indicators of consent to sexual touching but here I find nothing done by the complainant fell into that category.

114. At times on the night of the 6^th and morning of the 7th January 2019 the accused thought the complainant was keen on him but then at other times it was clear she was not. He bought condoms expecting to use them. He went back to the complainant’s home expecting to use them. He went upstairs and asked GH not to sleep upstairs expecting to use them. But, at no time did he ask the complainant a direct consent question and at no time did she give him her consent to what occurred.

115. The sleeping arrangement was not an indication of consent, to the contrary. When he was alone with the complainant after GH went to the bathroom he took his opportunity. He did not heed the obvious signals given by the complainant moving and brushing him away.

116. He was, I accept tired, still drunk and affected by cannabis but alcohol and cannabis intoxication cannot at law be taken into account by me in assessing his state of mind. Even if tired and intoxicated and affected by cannabis it would have been obvious that she did not want him touching her let alone having sexual intercourse with him. He knew what consent was. He knew no consent was being given he knew she was not consenting.

117. Each count has been proved beyond reasonable doubt.

Orders

118. Accordingly I find Mithun Kumar Shanmugam guilty of the following offences:

• Count 1 Sexual Touching - s.61KC(a) Crimes Act 1900

• Count 2 Attempted sexual assault - s.61I/s.344A(1) Crimes Act 1900

• Count 3 Sexual Touching - s.61KC(a) Crimes Act 1900

• Count 4 Sexual assault - s.61I Crimes Act 1900

• Count 5 Sexual assault - s.61I Crimes Act 1900

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Amendments

07 September 2020 - Typographical error in case title

Decision last updated: 07 September 2020