R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga - [2010] NSWCCA 228

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 August 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: Macfarlan JA at 1; James J at 180; McCallum J at 181

DECISION: (1) Grant leave to the appellants Chishimba, Makasa and Mulenga to appeal upon the grounds contained in their Notices of Appeal, other than Grounds 3 and 4 referred to in [22] of the Court’s reasons for judgment, leave to appeal not being required in respect of Grounds 3 and 4;
(2) Refuse leave under rule 4 Criminal Appeal Rules for those appellants to rely upon Grounds 3 and 4;
(3) In respect of Count 1 allow the appeals of each of those appellants and quash each of the convictions;
(4) Direct that on this Count a judgment and verdict of acquittal be entered in relation to each of those appellants;
(5) In relation to Counts 8, 10 and 16, vary the commencement date of the sentence imposed upon the appellant Makasa so that the sentence in relation to the convictions on those Counts is imprisonment for a term of 2 years, consisting of a non-parole period of 1 year commencing on 4 March 2008 and expiring on 3 March 2009, with a balance of term of 1 year expiring on 3 March 2010;
(6) Dismiss the Crown appeal against sentence, with reasons to be published subsequently; and
(7) The effect of the above orders is that the appellants Chishimba, Makasa and Mulenga are entitled to be released from custody immediately.

CATCHWORDS: CRIMINAL LAW – conviction appeal – whether on whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellants part of joint criminal enterprise to commit sexual assault on 15 year old girl – identity of actual perpetrator of sexual act unknown – whether appellants aware that sexual intercourse with complainant was taking place and that she was asleep when this commenced – whether inference could be drawn that appellants encouraged commission of criminal act - CRIMINAL LAW – criminal complicity – joint criminal enterprise – persons acting in concert – presence when crime committed – what constitutes encouragement to commit crime – correctness of direction as to recklessness as to consent of complainant

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: CTM v R [2008] HCA 25; (2008) 82 ALJR 978
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317
Giorgianni v R [1985] HCA 29; (1984 – 1985) 156 CLR 473
Jones v R [1997] HCA 56; (1997) 191 CLR 439
M v R [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
MFA v R [2002] HCA 53; (2002) 213 CLR 606
Osland v R [1998] HCA 75; (1998) 197 CLR 316
Phan v R [2001] NSWCCA 29; (2001) 123 A Crim R 30
R v Coney (1882) 8 QBD 534
R v Cowell (New South Wales Court of Criminal Appeal, 26 July 1985, unreported)
R v Russell [1933] VLR 59
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
Rasic v R [2009] NSWCCA 202
Sever v R [2010] NSWCCA 135
Tangye v R (1997) 92 A Crim R 545

PARTIES: Regina (Appellant)
Tyrone Chishimba (Respondent)
Tyrone Chishimba (Appellant)
Regina (Respondent)
Regina (Appellant)
Likumbo Makasa (Respondent)
Likumbo Makasa (Appellant)
Regina (Respondent)
Regina (Appellant)
Mumbi Peter Mulenga (Respondent)
Mumbi Peter Mulenga (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/14576011; 2007/14576012; 2007/14574021; 2007/14574020; 2007/14575011; 2007/14575010

COUNSEL:
P Leask (Appellant/Respondent – Crown)
R J Button SC (Appellant/Respondent – Chishimba)
B Rigg (Appellant/Respondent – Makasa)
W P Lowe (Appellant/Respondent – Mulenga)

SOLICITORS:
Solicitor for Public Prosecutions (Appellant/Respondent – Crown)
McGowan Lawyers (Appellant/Respondent – Chishimba)
Justin Lewis & Co Lawyers (Appellant/Respondent – Makasa)
Bilias & Associates (Appellant/Respondent – Mulenga)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0097
2007/11/0097
2007/11/0097

LOWER COURT JUDICIAL OFFICER: Armitage ADCJ

LOWER COURT DATE OF DECISION: 19 August and 26 October 2009

- 81 -

CCA 2007/14576011
CCA 2007/14576012
CCA 2007/14574021
CCA 2007/14574020
CCA 2007/14575011
CCA 2007/14575010

MACFARLAN JA
JAMES J
McCALLUM J

8 OCTOBER 2010

R v Tyrone CHISHIMBA

Tyrone CHISHIMBA v R

Likumbo MAKASA v R

R v Likumbo MAKASA

Mumbi Peter MULENGA v R

R v Mumbi Peter MULENGA

Judgment

:

Table of Contents

This judgment is organised under the following headings:

Joint criminal enterprises distinguished from aiding and abetting: [30]

(8) The relevance of verdicts of not guilty on other charges: [35]

The complainant’s evidence at the trial the subject of the present appeals: [67]

The evidence as to the appellants’ knowledge that one of the appellants commenced to have intercourse with the complainant whilst she was asleep: [109]

Conclusion as to the appellants’ knowledge that intercourse commenced when the complainant was asleep: [134]

Whether the appellants “encouraged” commission of the criminal act: [149]

“Presence at the scene and intentional assistance or encouragement”: [163]

(12) Whether new trial should be ordered: [173]
(13) The Crown appeal against sentence: [174]
(14) Orders: [177]

Nature of Case and Conclusions

2 This judgment relates to appeals and applications for leave to appeal by Tyrone Chishimba, Likumbo Makasa and Mumbi Peter Mulenga against their conviction on charges pursuant to s 61J Crimes Act 1900 of aggravated sexual intercourse without consent with a girl (“the complainant”) who was then aged 15. The charges related to an event alleged to have occurred on the night of 30 – 31 August 2006. Makasa was also convicted upon certain charges relating to events occurring during the day of 31 August 2006 but does not seek to appeal against those convictions. The various convictions resulted from verdicts of guilty returned by a jury at the conclusion of a three month trial. The jury found the appellants not guilty on other charges relating to offences alleged to have been committed on those days.

3 The appellants contended on appeal that the challenged verdicts of guilty are unreasonable and cannot be supported having regard to the evidence, particularly insofar as the verdicts were based upon acceptance of the Crown’s case of a joint criminal enterprise on the part of the appellants and particularly in light of the verdicts of not guilty on the other charges against them. The appellants also contended that certain directions that the trial judge gave to the jury were incorrect.

4 There is also before the Court a Crown appeal in relation to the sentences of imprisonment imposed upon the appellants. The Crown contended that those sentences are manifestly inadequate.

5 For reasons that are set out below I have concluded that the convictions on the charges related to the event alleged to have occurred on the night of 30 – 31 August 2006 (Count 1 in the Indictment) should be quashed upon the basis that it was not open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty of the offences charged (see [88] – [159], see especially [134], [150] below). Although the sufficiency of the trial judge’s directions to the jury does not arise in these circumstances, I have expressed the view that there was no error in those directions (see [160] – [172] below).

6 As in my view the appellants’ convictions on Count 1 should be quashed, it is unnecessary to consider the Crown appeal as to the adequacy of the sentences in relation to that Count. However because Makasa does not challenge his convictions on Counts 8, 10 and 16, it is necessary to consider the Crown appeal as to the adequacy of his sentence on those Counts. In relation to that aspect of the Crown appeal, my view is that the Crown’s contentions should be rejected. However the commencement date of the sentence should be varied to reflect the fact that if the orders that I propose are made there will be no conviction, and accordingly no sentence, in relation to Count 1.

The Charges and Convictions

7 There were six charges against the three appellants jointly. The first two Counts were in the following terms:

“(1) On or about 30 August, 2006 at Hurstville in the State of New South Wales, [the appellants] did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing that she was not consenting, in circumstances of aggravation, namely whilst in each other’s company.

[and in the alternative to Count 1]

8 The first of these charges was laid under s 61J Crimes Act which specifies a maximum penalty of imprisonment for 20 years. The second charge was laid under s 66C(4) Crimes Act which specifies a maximum penalty of imprisonment for 12 years.

9 The third and fifth Counts were in identical terms to the first Count and the fourth and sixth Counts (which were in the alternative to Counts three and five) were in identical terms to Count 2.

10 A further 10 charges were laid against Makasa. The first two (Counts 7 and 8) were in the following terms:

“(7) On or about 31 August, 2006 at Hurstville in the State of New South Wales, [Makasa] did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing that she was not consenting, in circumstances of aggravation, namely that [the complainant] was under the age of 16 years, namely 15 years.

[and in the alternative]

11 Counts 9, 11, 13 and 15 were identical to Count 7 and Counts 10, 12, 14 and 16 (again expressed as Counts in the alternative) were identical to Count 8.

12 The appellants were found guilty on Count 1 and Makasa was, in addition, found guilty on Counts 8, 10 and 16. The jury returned verdicts of not guilty on the other Counts. The appellants were thus each convicted of one charge of aggravated sexual intercourse without consent (occurring on the evening of 30 – 31 August 2006) and Makasa was, in addition, found guilty on three charges of sexual intercourse with a child above the age of 14 years and under the age of 16 years. These three charges related to intercourse that occurred during the day on 31 August 2006.

General description of the events of 30 and 31 August 2006

13 I shall set out later details of the evidence that is of significance to resolution of the issues on appeal. It is however desirable that at this stage I give a general description of the events and allegations relating to 30 and 31 August 2006. This account is largely derived from the electronically recorded Record of Interview that the police conducted with the complainant on 1 September 2006 (particularly Appeal Books pp 834 – 837) and from the trial judge’s Remarks on Sentence dated 26 October 2009. All page references given in the remainder of this judgment are, unless otherwise indicated, to pages of the Appeal Books.

14 After school on 30 August 2006 the complainant met with a girlfriend and commenced, and continued, to drink a considerable amount of alcohol. She said that she “passed out in Hungry Jack’s at Hurstville” but someone “slapped” her awake. Soon after, she was nearby drinking on the side of the road with a number of girlfriends when she met another friend, Jesse, who introduced her to Chishimba and Makasa. Someone suggested that they all go to the nearby home of Makasa to continue drinking. Makasa’s home was part of a house that was divided into three. He shared it with Mr Chinyani.

15 At the house, the complainant started vomiting. She said: “[i]t was about 6 o’clock and I’d drunk so much and I started spewing all over myself. I was spewing all over me, I was spewing on the carpet, on the couch, everywhere”. She then went, or was taken, outside the house where she fell asleep on the grass. Sometime later the complainant moved, or was moved, inside the house. At some stage of the evening she was in Mr Chinyani’s bedroom and apparently vomited, or left vomit, there.

16 The complainant described herself as “still wasted” when she returned to the house. She said that she wanted to sleep and was told to go into Makasa’s bedroom. She was told that because she had vomit on her clothes she could not sleep on the bed unless she changed into clean clothes. She was given a basketball jersey and a sarong into which she changed. There were a number of men in the room when she changed and went to sleep. The complainant said that she later woke up to find one of the men having intercourse with her and to see others in the room. This was the event that was the subject of the charge relating to the evening of 30 August on which the appellants were convicted (Count 1). The complainant alleged that in the following two hours five men, including the three appellants, had various forms of sexual intercourse with her without her consent. Counts 3 to 6 of the charges related to events that allegedly occurred in this period.

17 The complainant said that when she woke on the morning of 31 August 2006 she was alone with Makasa in his bedroom and in the period from when she woke to 4.00pm that day Makasa repeatedly had sexual intercourse with her without her consent. She said that this occurred about 25 – 30 times during the day (p 922). Counts 7 to 16 of the charges related to events that allegedly occurred in this period. The jury found Makasa not guilty of the charges under s 61J Crimes Act (which required proof of the absence of the complainant’s consent and Makasa’s knowledge of that lack of consent) but guilty of three of the charges under s 66C(3). The latter did not require proof of lack of consent and knowledge of that lack of consent but did in the circumstances require proof of an absence of an honest and reasonable belief that the complainant was over 16 years in age (see CTM v R [2008] HCA 25; (2008) 82 ALJR 978 esp at [35]). The jury found Makasa not guilty on the other charges relating to alleged events of that day.

18 In his opening at the trial, the Crown Prosecutor particularised Count 1 (upon which all the appellants were convicted) as relating to penile-vaginal intercourse alleged to have been occurring as the complainant awoke on the evening of 30 – 31 August 2006 and Count 3 to oral intercourse and Count 5 to anal intercourse which subsequently occurred on that evening (p 736).

Reconciliation of verdicts

19 In his Remarks on Sentence, the trial judge concluded that the jury’s verdicts were not inconsistent. His explanation of how they could be reconciled was not challenged by any of the parties to the appeals.

20 The trial judge commenced by saying that:

“As to the events that took place between 7am and 4pm on 31 August it is apparent that the jury were not satisfied that the Crown had proved beyond reasonable doubt that [the complainant] had not consented to the sexual intercourse, or they were not satisfied that the Crown had proved beyond reasonable doubt that Mr Makasa knew she was not consenting. It is also apparent that the jury rejected completely [the complainant’s] evidence that [during the day on 31 August 2006] Mr Makasa had sexual intercourse with her at least twenty-five times. They were not prepared to find the accused guilty of even the five offences alleged in the indictment. They found him guilty only of the three acts of intercourse to which, through his counsel, he had admitted” (p 29).

21 His Honour went on to say:

“As to the events of the preceding night [that is, the night of 30 – 31 August 2006], it is apparent that the jury were satisfied beyond reasonable doubt that [the complainant] awoke to find someone having penile vaginal intercourse with her and were satisfied beyond reasonable doubt not only that she had not consented to that intercourse, but also that the men present in the room knew she was not consenting. Further, the jury must of necessity have been satisfied beyond reasonable doubt that the three accused were participating in the joint criminal enterprise alleged by the Crown.

As the jury has found each accused not guilty of counts 3 and 5, it appears to me that the jury must have come to the conclusion that the Crown had not proved beyond reasonable doubt that the alleged acts of intercourse took place, or that the Crown had not proved beyond reasonable doubt that [the complainant] did not consent to the intercourse, or that the Crown had not proved beyond reasonable doubt that the accused knew that she was not consenting.

As the jury has found each accused not guilty of the alternative counts, 4 and 6, it appears to me that the jury must have come to the conclusion that the Crown had not proved beyond reasonable doubt that the alleged acts of intercourse took place, or that the Crown had not proved beyond reasonable doubt that the accused persons did not have an honest and reasonable belief that [the complainant] was above the age of sixteen years.

In my view there is no reason to suppose that the jury did not find the three accused not guilty of the fourth and sixth counts on this second basis. The evidence of Mr Chinyani that after he had entered the house and had gone to his room he heard the bed in Li’s [Makasa’s] room rocking then stopping and that this happened on several occasions, was not disputed. Mr Chinyani also gave evidence that Li knocked on his door with a jacket tied around his waist and asked for condoms. Mr Chinyani said he gave him two. His girlfriend, Genna Walker, gave evidence that Li came to the door wearing a black jacket in front of him wrapped around the back. She said it dropped a bit and she saw his thigh. She said she had no recollection of the conversation that took place between Li [Makasa] and Mr Chinyani.

I am left in no doubt that [the complainant’s] evidence, together with Mr Chinyani’s evidence as to what he saw and heard when he returned to the premises, and the DNA evidence given by Ms Sharon Neville, would have satisfied the jury beyond reasonable doubt that many acts of sexual intercourse took place in Li Makasa’s bedroom on the evening in question. Their verdicts of guilty in respect of the three alternative counts, 8, 10 and 16, are consistent with them being satisfied beyond reasonable doubt that by the following morning Mr Makasa did not have an honest and reasonable belief that [the complainant] was above the age of sixteen years.

As to the jury’s verdicts of not guilty in respect of counts 3 and 5, the alleged acts or oral intercourse and anal intercourse, it is Mr Trevallion’s submission that I should make a positive finding that [the complainant] consented to those acts. I am unable to make that finding. In my view the jury’s verdicts mean no more than that they were not satisfied beyond reasonable doubt that [the complainant] had not consented, or were not satisfied beyond reasonable doubt that the accused knew she was not consenting. It is not my opinion, on the balance of probabilities, that she did consent. I accept Mr Trevallion’s submission that the best explanation for the jury’s verdicts of guilty on the first count in the indictment is that they accepted [the complainant’s] evidence that she was asleep when that offence commenced and was therefore not able to consent” (pp 30 – 32).

Issues on the Conviction Appeals

22 There were some differences in the grounds of appeal advanced by the appellants. In substance however they each relied upon the following grounds (the numbering and ordering of the grounds is in part mine):

“(1) The verdict of guilty is unreasonable or unable to be supported, with regard to proof of joint criminal enterprise;

(2) The verdict on Count 1 is unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 3, 5, 7, 9, 11, 12, 13, 14 and 15;

(3) The learned judge erred in relation to his directions to the jury regarding joint criminal enterprise as those directions related to:

(a) participation in the enterprise;

(b) presence at the scene and intentional assistance or encouragement; and

(c) recklessness; and

(4) The trial judge failed to give adequate directions to the jury regarding lies said to constitute consciousness of guilt”.

23 These grounds relate to the convictions on Count 1. Makasa does not challenge his conviction on Counts 8, 10 and 16.

24 Before referring to the evidence given at the trial and to the course that the trial took, it is desirable that I refer to the law relating to unreasonable verdicts, joint criminal enterprises and the relevance of acquittals on charges other than those upon which an accused was convicted at a particular trial.

Principles relating to unreasonable verdicts

25 Section 6 Criminal Appeal Act 1912 requires the Court to allow an appeal “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence” unless the Court applies the “proviso” stated in that section. As a ground of appeal on such a basis (see Grounds (1) and (2) as identified above at [22]) is not on “a question of law alone” (see s 5(1)(a) of the Criminal Appeal Act), leave to appeal is required under s 5(1)(b) (Rasic v R [2009] NSWCCA 202 at [12]).

26 In M v R [1994] HCA 63; (1994) 181 CLR 487 the plurality judgment contained the following statements of principle concerning this type of ground of appeal:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

Ratten v The Queen

‘It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.’

…

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (at 493 – 495, citations omitted).

27 M v R was followed by the High Court in Jones v R [1997] HCA 56; (1997) 191 CLR 439 at 452 and in MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [25], [52] – [61]).

28 In short, the test to be applied is whether the Court considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.

Principles relating to joint criminal enterprises

29 It is sufficient at this stage of this judgment to identify the relevant principles by quoting as follows the formulation by Hunt CJ at CL (with the concurrence of McInerney and Sully JJ) in Tangye v R (1997) 92 A Crim R 545 at 556 – 557) of the directions that should be given to a jury where a “straightforward joint criminal enterprise” is alleged. This formulation has been treated as authoritative (see for example Osland v R [1998] HCA 75; (1998) 197 CLR 316 at [73] per McHugh J; Sever v R [2010] NSWCCA 135 at [144] per Latham J) and was adopted by the trial judge in the present case for the purposes of his Summing-Up (see pp 57 – 59):

“(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

Joint criminal enterprises distinguished from aiding and abetting

30 In Osland McHugh J distinguished between different types of criminal complicity.

31 First he referred to a “principal in the first degree” as one who committed “the whole or part of the actus reus of the crime [that is, the criminal act]” (at [70]). Secondly he said that “[t]hose who [aided] the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime” (at [71]).

32 His Honour then referred to a further category of derivative liability, that is, principals in the second degree. These were persons “who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death [where the alleged offence involves homicide]” (at [71]).

33 McHugh J then identified a further category that is applicable “where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree” (at [72]). It is with this category that the directions in Tangye (see [29] above) were concerned. In the present case, the Crown alleged that the appellants fell within this category and were thus liable as principals in the first degree. They were not alleged to have been aiders and abettors and thus liable as principals in the second degree. Nevertheless as liability for being an aider and abettor can involve proof of encouragement (see authorities described below from [137] – [146]) and as liability arising out of a joint criminal enterprise requires proof of an arrangement or understanding to commit a crime which may be inferred from encouragement of another in the commission of a crime (see Tangye extract above at [29]), authorities concerned with the former category may be instructive in relation to the latter.

34 I add that McHugh J observed in Osland in relation to the directions formulated in Tangye that “[i]n accordance with the New South Wales practice, the Court referred to ‘carrying out a criminal enterprise’ rather than acting in concert. The principles, however, are the same” (at [74]).

The relevance of verdicts of not guilty on other charges

35 As pointed out above (see [19] – [21] above), the trial judge took the view that the verdicts returned by the jury were not inconsistent. His Honour’s analysis of them was not challenged on appeal and is in my view correct. The fact that in this case the jury found the appellants guilty on some counts and not on others is accordingly not of itself a reason for concluding that the convictions of the appellants were unsafe and unsatisfactory (see MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 365 – 368; Osland at [120]). Nevertheless the acquittals on various of the counts here are significant factors that must be taken into account in considering whether the convictions are unsafe and unsatisfactory.

36 This is demonstrated by the analysis by Gaudron, McHugh and Gummow JJ in Jones of the views of the jury that were implicit in its acquittal of the appellant on one of the counts charged in that case. Their Honours considered that “[t]he only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of [the complainant’s] evidence concerning the incident the subject of the second count”, with the consequence that “[t]he jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment” (at 453).

37 Their Honours went on to say that there was “nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count”. They ultimately found that the convictions on the first and third counts were unsafe and unsatisfactory. Their Honours said:

“Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof” (at 455).

38 These observations and conclusions are relevant to the present case because, on the trial judge’s subsequent analysis of the verdicts, the jury’s verdicts of not guilty on all charges under s 61J Crimes Act, other than on the first Count (which related to the point of time at which the complainant said she was asleep), indicate that the jury must have considered that the complainant’s evidence that she did not consent to the sexual activity the subject of those charges and/or that she communicated that lack of consent to the appellants “lacked sufficient cogency to convict” (Jones at 455 quoted in [37] above) (see [21] above). Bearing in mind what the trial judge said was implicit in them, the verdicts of not guilty disqualified the complainant’s evidence of protestations concerning the sexual activity from consideration as part of the evidence of the existence of a joint enterprise to commit a criminal act. That is because it was implicit in the verdicts of acquittal that the jury was not satisfied to the requisite degree that the complainant protested as she contended in her evidence.

39 What I have said on this topic does not conflict with the observation in MFA that “Jones was a very fact-specific case. Indeed all such cases are highly fact-specific” (at [89], citations omitted; see also at [34] – [35] and R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299). The views I have expressed are based upon the trial judge’s close consideration (with which I agree) of what was necessarily implicit in the jury’s verdicts and the particular factual circumstances of the case.

The trial

40 The verdicts of guilty under challenge (those on Count 1) are related to a very specific point of time, being the point of time on the evening of 30 August 2006 when the complainant says that she woke up to find a man having sexual intercourse with her and to see other men in the room. As she was unable to identify who was then having intercourse with her but gave evidence that the three appellants were in the bedroom at the time, proof of a joint criminal enterprise involving the three appellants was, as the trial judge recognised in his Remarks on Sentence (see [21] above), essential to proof of the appellants’ guilt on Count 1. The following description of the trial accordingly focuses on material relevant to the complainant’s evidence about this point of time and in particular to the Crown’s allegation that the act the subject of Count 1 was done pursuant to a joint criminal enterprise in which the appellants were participants.

The Crown opening

41 At the outset the Crown gave the particulars to which I have referred above of the allegations contained in Counts 1, 3 and 5 (and therefore also to Counts 2, 4 and 6 which were alternatives to those counts) (see [7], [9] above).

42 The Crown Prosecutor later referred in the following terms to the existence of a joint criminal enterprise:

“Now, the Crown case is that with respect to counts 1 [to] 6, the accused persons were part of a joint criminal enterprise, that is, they reached an understanding or an arrangement amounting to an agreement between them that they would have sexual intercourse with the complainant whether or not she was consenting. Now, that understanding or arrangement need not be an expressed one. It can be inferred from all the circumstances or all the evidence that emerges in the course of the trial.

Now, if one or other of the parties to that understanding or agreement does or they do between them an act in accordance with that agreement, all those things which are necessary to constitute the crime, they are equally guilty of the crime regardless of the part played by each in its commission” (p 798).

43 The Crown Prosecutor then said that it was “for the Crown to establish the existence of the joint criminal enterprise” and “participation in that joint criminal enterprise by the accused persons” (p 799).

The Record of Interview of the complainant of 1 September 2006

44 An electronic record of the police interview of the complainant conducted on 1 September 2006 was admitted into evidence and played to the jury. This record constituted the principal evidence in chief of the complainant at the trial.

45 Having given a description along the lines of that which I have given above (see [14] – [15]) of the events leading up to the complainant falling asleep on the grass outside Makasa’s home, the complainant said “I woke up back in the house” and in response to the question “What happened after that?” said:

“ … oh, yeah, the night, Wednesday night is when all those boys were there and then they were just, like, speaking their little language and, like, I was so tired. I just, I just didn’t do anything. I just let them do what they were doing and I thought, All right, then in the morning I can just go … when I’m sober. And then I woke up in the morning, I was, like, woken up to being, like, shaken at 7.00 in the morning. They, all the boys had left. There was just this one that lived there and, like, he, oh, he made me, like, have sex with him from, like, 7 o’clock till, like, 4 o’clock in the afternoon. He took his little 10 minute sleeping breaks and I was, like …

Q81 What happened after that?

A Then I went home … I went to Hurstville. I talked to the youth worker at, at Hurstville and she called my refuge ‘cause I was a missing person for about a day and, or something, and then the refuge told me to tell police and I told the police and now I’m here” (pp 836 – 837).

46 The complainant said that when she went from the loungeroom into Makasa’s bedroom “that’s when they gave me clean clothes and that’s when I know, like, it was a dark room but there were, like, five figures” (p 885). She said that she was “still wasted” and that Makasa and Chishimba were amongst the five in the bedroom. Since there was vomit on her clothes she was told that she had to change before she could go to sleep. She was given a basketball jersey and a sarong, both of which she put on. After putting on the sarong she took her underpants off (pp 888, 989). She described the men as “all random sitting down on the floor and, yeah, there’s little people on the floor” (p 891: Question 566; compare [47] below: Question 634). The light was off but there was light coming into the bedroom from the loungeroom (p 887). After the complainant lay down on the bed, Makasa told her that she could stay at his house, presumably for the night.

47 She then gave the following evidence:

Q641

48 The complainant said that the intercourse occurring when she woke up was penile-vaginal intercourse. When asked to describe the person who was having intercourse with her she responded: “He was black but that’s all I know. They all, it’s like they were all one person that night. Like, who would know, man?” (p 900).

49 When asked whether she said anything to the man, she gave the following evidence:

50 Later the complainant gave the following evidence about the same incident:

51 The oral sexual intercourse that the complainant described in this passage was the subject of the third and fourth Counts, they being charges of which the appellants were acquitted.

52 The complainant said that sexual activity with the five males continued without her consent for about two hours. (The anal intercourse the subject of the fifth and sixth Counts against the appellants occurred in this period.) She said that she then went to sleep and woke in the morning (pp 908 – 909).

The police interview of the complainant on 6 September 2006

53 This interview was mainly concerned with the events alleged to have occurred during the day on 31 August. The complainant said that Makasa had sex with her about 30 times during that day (p 967). The complainant said that the night before she had cried “heaps” in the period that the sexual activity was alleged to have taken place (p 987).

The complainant’s evidence at the first trial

54 A trial of the appellants on the charges now under consideration that commenced in November 2008 was aborted during the course of the evidence. Evidence given by the complainant at that trial was tendered at the trial the subject of the present appeals.

55 The complainant’s evidence at the first trial included the following which related to the evening of 30 August:

56 The complainant said that after the penile-vaginal intercourse that was occurring when she woke up finished, anal intercourse and simultaneous anal and vaginal intercourse subsequently occurred.

57 She gave the following further evidence:

“Q. Who was present in that bedroom while firstly the penile/vaginal [referring to what was occurring when she awoke] acts occurred?

…

A. There was [Li], Tyrone and Peter.

…

58 Later in her evidence the complainant referred to her girlfriends leaving the house before she went to sleep. She said that “I was heavily intoxicated at the time and felt that I couldn’t move. So at the time, yes, I did want to stay and sleep” (p 1023).

59 In describing why she had earlier changed her clothes in the bedroom in front of the men whom she described as being there, she said:

“Like I said, I was intoxicated. If it happened today, I most definitely would [ask the men to leave the room] … I can’t take back anything that happened. I can’t say why I did this, why I didn’t do that, but I’m assuming at the time my thoughts would have been, you know, ‘This isn’t my house’ and whatever. And nothing had happened to me yet. I had no – I was not led to believe yet that these men were going to violate me in any way” (p 1049).

60 The complainant said that she had first met Chishimba and Makasa earlier that evening at Hungry Jack’s and that she “knew nothing of [Mulenga] until when the incident was actually occurring. I heard Peter’s name [being] spoken and that’s the only way I’ve learnt to know of Peter and I don’t know about the others” (p 1116).

61 The complainant did not refer in either of the interviews that she had with the police or in her evidence in chief at either of the trials to any of the men who were in the bedroom when she awoke being naked. However Dr Terence Yoong of the Child Protection Unit at Sydney Children’s Hospital at Randwick, who saw the complainant at about 4.30pm on 1 September 2006, gave evidence in the second trial that he had recorded that the complainant told him that she “remembers waking up at approximately 1am on Thursday morning naked in bed surrounded by five naked men” and that she described “the five men as taking it in turns to have vaginal, oral and anal sex with her between 1am and 4pm on Thursday 31 August 2006”. She told Dr Yoong that she was “released by the men” at 4.00pm on that day (pp 2821 – 2823).

62 It was presumably the giving of this evidence that led counsel who appeared for Chishimba at the first trial to put the questions appearing in the following passage to the complainant:

63 The complainant gave the following evidence concerning the identity of the men in the bedroom during the evening:

64 The complainant said that when she woke up the door to the bedroom was “[p]artially open, letting some light in” (p 1130), that she did not know how long she had been asleep and that she woke up “[t]hrough someone having intercourse with me” (p 1184). She said that she was then still intoxicated but “I was less intoxicated than I was when I arrived at the premises but I definitely wouldn’t say that I was sober by any means” (p 1186).

65 The complainant then gave the following evidence:

66 The complainant said that she could not say for how long the act of intercourse continued when she woke up:

Q. You didn’t mean that there was more than one person on top of you, you meant that there was only one and the rest were standing nearby?

A. I think at the time – I can’t recall exactly what was happening at that time right now.

The complainant’s evidence at the trial the subject of the present appeals

67 The complainant was cross-examined further at the trial the subject of the present appeals but no part of that cross-examination is of relevance for present purposes.

The evidence of Mr Chinyani

68 Makasa’s flatmate, Mr Chinyani, gave evidence that he arrived home with his girlfriend, Ms Walker, at about 10.45pm. As he approached the front door he heard a “bed rocking” noise coming from Makasa’s bedroom, and three male voices and one female voice. He identified the male voices as being those of the appellants. The door to Makasa’s bedroom was shut. Whilst in his own bedroom he heard “laughing and bed rocking” (p 2665). He was not explicit in his evidence in chief as to whether the female voice he heard was laughing. In cross-examination at the second trial he agreed that evidence that he had given at the first trial that he “could hear the girl laughing with the voices of the male at the same time” was truthful (p 2678). After argument, the trial judge gave the Crown Prosecutor leave to cross-examine Mr Chinyani, a witness whom the prosecution had called to give evidence, on a statement that Mr Chinyani had given to the police on 1 September 2006. In that statement Mr Chinyani had referred to Makasa coming to his bedroom asking for condoms and to hearing a girl’s voice about five minutes later. Mr Chinyani agreed with the Crown Prosecutor that the following, which appeared in the statement, was truthful:

“I find it very hard to describe the girl’s voice. It was like screaming but I can’t say whether or not it was good or bad screaming. I find this hard to say. I can’t say whether or not it was the sounds of someone enjoying sex or not. It’s too hard for me to say that either way” (p 2759).

69 When then asked by the Crown Prosecutor whether he was mistaken when he said that he heard the sounds of a girl laughing coming from Makasa’s room, Mr Chinyani replied “I would say no” (p 2760). In further cross-examination on behalf of Chishimba, Mr Chinyani said that he had mentioned in the first statement that he had given to the police (presumably that of 1 September 2006) that he had heard laughing. He also answered “yes” to the question immediately following which was “[a]nd the laughing you say that you heard, did that include laughing in a girl’s voice?” (pp 2786 – 2787).

70 Mr Chinyani’s girlfriend, Ms Walker, did not give any evidence that she heard a girl laughing.

Other witnesses

71 The Crown called many other witnesses to give evidence. These included a number of friends of the complainant who gave evidence of the events of 30 August 2006 which occurred prior to their departure from Makasa’s home and evidence of complaints made by the complainant after she left Makasa’s home on 31 August 2006. The Crown also called evidence from various police officers and medical experts. It is unnecessary for present purposes to refer to more than the following.

72 One of the complainant’s friends, Ms Tekahukoheko, gave evidence that before she and a number of the friends left the house on the evening of 30 August 2006 she told the complainant, who was then in a bedroom (probably that of Mr Chinyani), that they were leaving. The complainant responded by saying “Okay” and then, according to Ms Tekahukoheko, “just looked at me and went back to sleep”. Ms Tekahukoheko turned the light off, closed the door and left (pp 2419 – 2420). Ms Tekahukoheko said that it was she who had earlier taken the complainant into the bedroom. When she left the complainant in the bedroom and closed the door, the three appellants were in the loungeroom. She subsequently went back to the bedroom possibly two or three times to check on the complainant. The complainant was on the bed “under the cover” (pp 2418, 2433). She did not suggest that any men were in the bedroom on these occasions.

73 The evidence, given at the first trial, of another friend of the complainant’s, Ms Bianca Pokai, was tendered in the second trial as Ms Pokai was unable to give evidence at the later trial. Her evidence was that the complainant was “passed out” in the loungeroom when the girls decided to leave and that she, Ms Pokai, asked the complainant if she wanted to come with them (p 3035).

74 Yet another of the complainant’s friends, Ms Manu, who was then 18 years of age and a friend of the appellants, gave evidence that earlier in the evening, whilst she was at the nearby Meridian Hotel, Mulenga had said “I’m always horny, I haven’t fucked anyone [for] ages” and “I have got to keep myself occupied because if I’m not occupied I’m thinking about sex” (p 2893). She said that the three appellants left the hotel at about 9.30pm and that “[t]hey were tipsy” (p 2894).

Applications for verdicts by direction

75 The trial judge rejected applications made on behalf of the appellants that the trial judge direct the jury to return verdicts of not guilty on Counts 1 to 6.

76 In the course of his judgment on this issue the trial judge made the following comments concerning the Crown’s case that the appellants were parties to a joint criminal enterprise:

“It is the Crown Prosecutor’s submission that, having regard to all the circumstances in which the sexual intercourse alleged by [the complainant] is said to have taken place, it is clearly open to the jury to infer that an understanding or arrangement had been entered into. Those circumstances include the apparent age of [the complainant], the fact that she was being sexually assaulted by either three or five men considerably older than herself in a room about ten feet by ten feet, that the men were taking turns at having intercourse with her and that the intercourse she was subjected to was vaginal, anal and oral. It is the Crown Prosecutor’s submission that those same circumstances would almost inevitably lead the jury to conclude that the three accused were assisting and aiding each other.

I accept the Crown Prosecutor’s submissions. As Hunt CJ at CL says in the passage quoted above [see it extracted at [29] above] the undertaking or arrangement need not be expressed. Its existence may be inferred from all the circumstances and it need not have been reached at any time before the crime was committed. As to encouragement or assistance it cannot be overlooked that [the complainant’s] evidence is that she objected verbally to what was going on and was crying yet all three or five persisted” (pp 3378 – 3379).

The appellants’ cases

77 The appellants did not adduce any evidence at the trial.

The Crown Prosecutor’s final address

78 Relevant parts of the Crown’s final address were as follows:

“Some time later [the complainant] was awoken by an act of penile vaginal penetration. She described the man as a dark skinned male. At this time she stated that she was only 15. She didn’t want to do this and she cried. This time [the complainant] believed that there was one man standing up near the bed, one man sitting on the bed and two men sitting on the floor” (pp 3433 – 3434).

79 The Crown Prosecutor told the jury that the Crown was not suggesting to it that there were in fact five men in Makasa’s bedroom on the night of 30 August 2006. He suggested that the jury might well find that the complainant was mistaken in saying that there were five rather than three men present (p 3340).

80 The Crown Prosecutor said the following in relation to the question of joint criminal enterprise:

^th

The Crown says all were present in the room. They were heard to be laughing, you might think encouraging, cheering each other on. It was a small room where they were in and they were laughing. They had reached an understanding that they would have sexual intercourse with [the complainant] irrespective of whether she consented or not, they didn’t care, and you’re entitled not only to look at what happened in the room but you are entitled to look at all the circumstances, before the acts themselves, the overall conduct of the accused persons that evening, and their conduct afterwards, in making a determination whether you’re satisfied that there was an arrangement or understanding with respect to the three accused to sexually assault [the complainant].

But you might think that the most compelling piece of evidence, the most convincing piece of evidence of an arrangement or an understanding, is that they were all there in the room together perpetrating acts, sexual acts upon her, and on occasions doing it simultaneously, because sometimes the best evidence of an understanding between people is what they’re doing and what they’re doing together, and when you consider what they did in the room and the leadup to [sic] circumstances, the Crown respectfully submits, there’s only one conclusion that you can draw and that is that they’d all come to that understanding” (p 3484).

The addresses on behalf of the appellants

81 In its submissions on the appeals, the Crown described the appellants’ contentions at trial in the following terms. On the appeals, the appellants did not express any disagreement with this description:

“It was Chishimba’s case that he was not present at the time the alleged offences occurred. It was his case that there was no evidence capable of proving beyond reasonable doubt that he was present in [Makasa’s] room at the time the complainant alleged she was sexually assaulted.

It was Makasa’s case, in relation to counts 1 to 6, that he did not have sexual intercourse with the complainant in the presence of other men on the night of 30 August or the early hours of 31 August. It was his case that there was no evidence capable of proving beyond a reasonable doubt that he was in his room at the time of the alleged offences. In relation to counts 7 to 16, which related to five acts of intercourse on 31 August, it was his case that he had consensual intercourse with the complainant on three occasions during the day and that he had an honest and reasonable belief that the complainant was 16 years old. It was his case that on the first two of those three occasions a condom was used and that on the third occasion the complainant was the aggressor and no condom was used.

It was Mulenga’s case that any sexual intercourse engaged in by the complainant was consensual and that the Crown had not proved beyond reasonable doubt that he did not have an honest and reasonable belief that the complainant was above the age of 16” (Crown’s Summary of Trial p 92).

The trial judge’s Summing-Up

82 The trial judge told the jury that the Crown relied upon the concept of joint criminal enterprise because it was “not able to prove beyond reasonable doubt which of the [appellants] physically committed which of the alleged offences” (pp 56 – 57). His Honour emphasised that it was necessary for the Crown to show “both the existence of [the] joint criminal enterprise and the participation in it by the accused person” (p 58). He instructed the jury in the following terms as to what constituted participation in a joint criminal enterprise:

“Now members of the jury a person participates, that is an important word, a person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed and with knowledge that the crime is to be, or is being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participants in the joint criminal enterprise to commit the crime. Now members of the jury if the agreed crime was committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

Members of the jury in this present case it was the Crown Prosecutor’s submission that the Crown has proved beyond reasonable doubt that at least by the time the alleged offences were being committed, the three accused had entered into an agreement, perhaps an unspoken agreement, to sexually assault [the complainant] in the manner she says she was assaulted. The Crown Prosecutor submits that the Crown has also proved beyond reasonable doubt that each of the three accused had participated in each of the alleged offences in the sense that each of them was present, each of them was either committing a sexual assault upon [the complainant] or could see that someone else was committing such an assault and that by being present in the circumstances that then existed they were at the very least giving encouragement to each other in the commission of the offences.

The circumstances upon which the Crown relies to prove both the agreement to commit the offences and the participation of each of the three accused in that agreement are, I will just remind you, the Crown has to prove those two things, bear that in mind. It has to prove both the agreement to commit the offences and the participation of each of the three accused in that agreement and what the Crown relies upon is this. First it is [the complainant’s] evidence that although she cannot say which accused person committed which type of sexual assault, that is vaginal, anal or oral, it is her evidence that every man present, be it three men or five men, had some form of sexual intercourse with her. Second it is [the complainant’s] evidence that the only persons in the room at the time the offences were being committed were the men who sexually assaulted her. Third, it was [the complainant’s] evidence that the men who were sexually assaulting her were taking it in turns and that in one instance at least two men were having intercourse with her simultaneously. Fourth, that all of this was taking place on a bed in a room about ten feet by ten feet and that it went on according to [the complainant] for a considerable length of time. Fifth, that [the complainant], then only fifteen years and eight months old, had stated her age, had said she did not want to do it and was crying from time to time. It is the Crown Prosecutor’s submission that in those circumstances even if it be the case that one or more of her attackers did not actually hear her say how old she was, the totality of the circumstances disclose a situation where these three accused had agreed that they were going to have sexual intercourse with [the complainant] without her consent, knowing she was not consenting” (pp 59 – 61).

83 The trial judge reminded the jury that the first Count (and therefore the alternative charge in Count 2) related to “the very first incident where she woke up and her evidence is that someone had his penis in her vagina” (p 66).

84 After an extensive review of the evidence, the trial judge reminded the jury of aspects of the addresses of counsel. In relation to the number of men in Makasa’s bedroom after the complainant said she woke up on the evening of 30 August 2006, his Honour said:

“The crown prosecutor raised the question, ‘Were there five men in the room?’ He submitted to you that there were not and again, of course, members of the jury, you are not, of course, bound by that submission. The only evidence as to how many men were present is [the complainant’s] evidence. She says there were five and she says it all went on for about 2 hours or more. You do not, of course, have to accept her evidence in that regard. It is entirely a matter for you. And so far as Mr McCrudden’s [counsel for Mulenga at the trial] case is concerned, he of course has said nothing to the effect that there were not five men there. In fact, he referred to the fact that [the complainant] chose to take her bra off in the presence of five men” (p 328).

85 His Honour also said the following in connection with a reference that the Crown Prosecutor made to differences and inconsistencies in the complainant’s evidence:

“He also reminded you of what [the complainant] had told various people after the event. He conceded that there are, of course, differences and inconsistencies. However, the crown prosecutor posed the question, ‘Is it not your experience that you sometimes tell different people different parts of what happened[?]’ He suggested that there is an underlying consistency in what she said to the various people to whom she complained and he suggested that you would not forget that part of her evidence is that early on – after having left the premises – she was in a state of shock; but that is a matter for you too.

The crown prosecutor then went on to remind you of the evidence of Jessie Manu, Athena Field, Sue Kean and the rest as to what [the complainant] said to each of them. It will all be fresh in your minds. It is only yesterday that I reminded you precisely of what was said by [the complainant] to each of those persons. The crown prosecutor put to you that there is a consistency in the complaints of [the complainant] that cannot be ignored. He said that people don’t choose to tell everyone every detail. Further to that, people have different capacities to store information and to articulate. I think in saying that he is referring not only to [the complainant] herself but to the people to whom she was speaking. They have different capacities to absorb information and to understand information” (p 334).

86 His Honour said the following in relation to the Crown Prosecutor’s address as to joint criminal enterprise:

“It is the crown prosecutor’s submission that on the evidence now before you, you would be satisfied beyond reasonable doubt that all three accused were in [Makasa’s] room on the evening of 30 August, participating in sexual acts with [the complainant] as alleged in the indictment. They were engaged in a joint criminal enterprise to have sexual intercourse with her, whether she consented or not, and they were rotating, at times were committing sexual acts simultaneously and they were laughing and encouraging each other. The crown prosecutor submitted that a compelling piece of evidence in relation to joint criminal enterprise is that some acts were being committed simultaneously” (p 336).

87 In concluding his Summing-Up by describing to the jury the process by which its verdicts would be delivered, his Honour referred to the first Count as being “the allegation of vaginal intercourse … that’s the occasion when [the complainant] says she woke up to find someone actively in the process of having sexual intercourse with her, vaginal intercourse” (p 415).

Evidence of a joint criminal enterprise

88 In its Written Submissions on the appeals, the Crown made the following submissions as to the evidence before the jury that warranted a conclusion that the appellants were parties to a joint enterprise involving one or more of them having sexual intercourse with the complainant without her consent and knowing that she was not consenting:

“25 The circumstances of the instant case exceed those of ‘non-accidental mere presence’. Firstly, the appellants were each present when the complainant awoke. Therefore, each of them had entered the small room whilst the girl was sleeping, and remained present during the period leading up to, and including, one of them having sexual intercourse with her, for the first time. They remained present whilst that occurred without intervening or leaving. It would have been obvious to them that she was drunk and asleep. Although they were acquitted of all remaining counts, it is plain that the jury accepted that they had further sexual intercourse with her in circumstances that did not establish a criminal offence. Nevertheless, their sexual interest in her as established by their conduct in this regard (and in the case of Makasa, his admitted sexual activity with her the following day) proved significant evidence of their intention to have sexual intercourse with her and intentional encouragement of each other in count 1. It was open to the jury to so find”.

89 It is important for the purpose of considering whether verdicts are unreasonable and cannot be supported by the evidence to consider the totality of the relevant evidence that was before the jury (see Rasic at [25], [29] per Johnson J; Basten JA and R S Hulme J agreeing). To enable this to be done in the present case the evidence that was available for consideration on the point in question must be identified. That step is here of particular importance in light of the very precise way in which Count 1, upon which the appellants were convicted, was particularised and in light of the verdicts of not guilty returned on all the other Counts that charged that the appellants had sexual intercourse with the complainant knowing of a lack of consent on her part.

90 In its Written Submissions on appeal (see [88] above) the Crown did not rely upon some aspects of the evidence that it relied upon in its final address at the trial (as to which see [78] – [80] above). In taking this course the Crown recognised the limited basis upon which the appellants were convicted and their acquittal on other charges of sexual intercourse without consent.

91 The matters that the Crown put to the jury at the trial that it was not entitled to rely upon on appeal to support the verdicts of guilty on Count 1 were in my view as follows.

Subsequent sexual activity

92 First, the Crown relied at the trial on evidence “that there were times where there were sexual acts being perpetrated simultaneously” (see [80] above). The evidence of the complainant to this effect related to the period of time on the evening of 30 – 31 August 2006 that commenced after the complainant woke up in Makasa’s bedroom and after the penile-vaginal intercourse that was then occurring had ceased. This evidence did not relate, at least in a direct sense, to the earlier point of time when the complainant said that she woke up to find one of the men having intercourse with her. Furthermore, in light of the jury’s verdicts of not guilty on the Counts relating to the later period, the sexual acts that were the subject of this evidence were not acts that have been proved to have been unlawful (see [21] above). Accordingly, it would not have been open to the Crown to argue on appeal (and it did not do so) that evidence of sexual activity, not proved to have been unlawful, commencing in the period after the complainant woke up was evidence from which an inference might be drawn that the appellants had agreed prior to the complainant waking up that one or more of them would have sexual intercourse with her irrespective of whether she consented. As that subsequent sexual activity cannot be regarded as unlawful in light of the verdicts of acquittal in respect of it, evidence of it was not in my view capable of providing any support for a conclusion that the appellants earlier reached an agreement that they would engage in sexual activity that was unlawful.

188 Although the trial was run on a different basis, counsel for Mr Chishimba submitted on sentence that the judge should find that the complainant consented to the conduct the subject of counts 3 and 5 (alleged acts of oral intercourse and anal intercourse respectively). It is difficult to reconcile that submission with Mr Chishimba’s case put at the trial, which appeared to be that he was not in the room at the time of the sexual activity complained of.

189 In any event, the trial judge was not satisfied on the balance of probabilities (for the purpose of sentencing) that the complainant did consent to those acts. His Honour thought (correctly, in my view) that the jury’s verdicts meant no more than that they were not satisfied beyond reasonable doubt that the complainant had not consented, or were not satisfied beyond reasonable doubt that the accused knew she was not consenting. The judge accepted a submission, again put on behalf of Mr Chishimba, that the best explanation for the jury’s verdicts of guilty on the first count was that they accepted the complainant’s evidence that she was asleep when that offence commenced and was therefore not able to consent.

190 Beyond the need to consider the evidence in accordance with those premises, I do not think it is either necessary or appropriate to draw any conclusions as to the complainant’s credibility from the fact that the jury acquitted the appellants of counts three to six. I do not think that the acquittals in the present case are amenable to the same analysis as was available on the facts in Jones (at 453.5 per Gaudron, McHugh and Gummow JJ).

191 As explained by Simpson J in TK v R [2009] NSWCCA 151 at [127] (Latham J agreeing at [204]), the approach taken in Jones “goes beyond the whole of the evidence and includes an examination of the significance of the acquittals, and what can be read into those verdicts”.

192 Macfarlan JA has concluded, by reference to the reasoning in Jones, that the complainant’s evidence in the present case that she did not consent to the sexual activity the subject of counts three and five or that she communicated that lack of consent to the appellants “lacked sufficient cogency to convict”: Jones at 455. On that basis, his Honour would exclude the complainant’s evidence of “protestations” from consideration as part of the evidence of the existence of a joint enterprise to commit a criminal act.

193 On my reading of the evidence, the complainant did not purport to have communicated her lack of consent so clearly and loudly at any point that no one could have misunderstood her state of mind. Her evidence is replete with concessions as to the things she might have said and done differently to articulate her protest. Accordingly, there was a rational basis for acquitting the appellants on counts 3 and 5 without rejecting the evidence of the complainant’s protestations, such as they were.

194 Further, the uncontested evidence in the present case was that the complainant was asleep when the sexual intercourse on which count one was based began. The point at which a continuing absence of vigorous protest from a person awakening to such conduct might sustain a reasonable doubt as to knowledge of the absence of consent was very much a matter for the jury. It was rational for them to draw a distinction between count one and the other counts on that basis. For those reasons, I think it is wrong to approach the present task on the basis that the assessment of the cogency of the complainant’s evidence should be informed by the jury’s acquittals.

195 For my part, I do not feel confident in dismissing any part of the complainant’s evidence from consideration on the present appeal. I do not think the jury’s acquittals on the other counts warrant or demand such an approach. That approach comes into play only if there is no rational explanation for the diverse verdicts: TK at [137]. In a case which does not warrant the Jones approach or entail inconsistent verdicts, the proper approach to an appeal based on the alleged unreasonableness of the verdict is to consider the whole of the record.

196 The critical task is to determine whether, giving appropriate deference to the constitutional role of the jury as the primary arbiter of guilt and recognising the advantages of their position, it may be concluded that it was not open to them upon the whole of the evidence in the present case to convict on count one on the basis of a joint enterprise. The advantage enjoyed by the jury over this Court in seeing and hearing the evidence was significant.

197 The trial under appeal was a “subsequent trial” of sexual offence proceedings for the purposes of the Criminal Procedure Act 1986 (chapter 6, part 5, division 4). At the earlier trial, the complainant’s evidence-in-chief consisted of the tapes of two interviews she gave to police within a week after the relevant events and some additional oral evidence. She was cross-examined at length at that trial by each of the three barristers then representing the appellants, and briefly re-examined.

198 That evidence comprised the “original evidence” of the complainant for the purpose of s 306I of the Criminal Procedure Act. At the trial under appeal, all of that evidence was admitted (with some limited editing). In addition, there was further cross-examination of the complainant by each of the barristers then representing the appellants, as contemplated by s 306J of the Act. On my reading of the transcript, the provision that permits such further cross-examination was given a liberal interpretation in the present case.

199 Accordingly, the jury watched the complainant on a number of DVDs over many days, first in the two records of interview, which were conducted when she was fifteen, and then when she was cross-examined at length at the earlier trial, when she was seventeen. They then watched her cross-examined further, by closed circuit video link at the trial, when she was eighteen. The cross-examination by two of the three barristers then representing the appellants was lengthy.

200 Of all of that evidence, this Court has only transcript. The impossibility of replicating the atmosphere of the trial in those circumstances is manifest. Further, the issues to be determined in the trial of the appellants were, in my view, very much of the kind best judged with “the collective endowments of a jury”: Jones at 442.6 per Brennan CJ. Mindful of its inherent constraints, I have given close attention to the written record of the present trial. That undertaking has not left me in any doubt as to the verdicts of guilty on count one returned by the jury. The following summary is necessarily incomplete, but it is an attempt to identify the primary considerations that have informed my conclusion.

201 There was evidence to establish the following matters. Li Makasa and Tyrone Chishimba encountered six young females and one young male (Adam) drinking on the street. They knew some of them but not the complainant. They invited the group back to Li Makasa’s apartment. At 6.12pm Tyrone Chishimba sent an SMS message to Peter Mulenga from Li Makasa’s mobile telephone saying “Bro there’s honeys at Li’s. Come over. Tyrone”. In due course, Peter Mulenga arrived at Li’s in response to that message.

202 The complainant was extremely drunk and began vomiting shortly after she arrived at the apartment. At some point, she was taken to the flatmate’s bed where she also vomited. At some point she was taken outside where she passed out.

203 The complainant’s evidence in the first record of interview with police was that she later came back inside by “tripping up the stairs and landing inside” (AB 884). Notwithstanding some inconsistencies in the evidence as to the sequence of various events that night, it was plainly open to the jury to conclude that all of the other girls and Adam had left by the time of the events she described next.

204 The complainant said that when she fell into the lounge room there were three people in there. She was told to go into Li Makasa’s bedroom where there were two more people. There were five men in all, including Li Makasa and Tyrone Chishimba. The complainant was saying she just wanted to go to sleep and they told her she couldn’t sleep unless she changed her clothes because they had vomit on them (AB 886). She took off her top and her bra and put on a yellow jersey with “Champion” written on it. She also put a sarong around her hips and removed her tracksuit pants from underneath and probably also her underpants (see AB 888; 989 and 1184).

205 The complainant described the position of the men in the room (before she went to sleep) in different ways. When she was describing the room (at AB 891) she said:

“And they’re all random sitting down on the floor and, yeah, there’s little people on the floor.”

206 However, shortly after that, she said there were two people in the room already who were “standing there doing nothing” and three who followed her into the room (AB 892 to 893). Subsequently, she said that when she was trying to get to sleep, Li Makasa was sitting on the bed and “there were, like, four guys just standing over there” (AB 898).

207 When the complainant awoke, a man she does not purport to identify was having sexual intercourse with her. The record of interview includes the following exchange (at AB 903):

208 When the complainant was going to sleep, the door was open and she was wearing the yellow jersey. When she awoke to a man having sexual intercourse with her, the door was mostly closed (AB 903) and the shirt was gone (AB 904 to 905).

209 I do not agree that the evidence of other witnesses made it clear that there would have been no more than three men in the bedroom at that time. I do not think it is appropriate to consider the complainant’s evidence on the basis that two of the five men she said were present were not in fact there.

210 Although the appellants did not adduce any evidence at the trial, a version of events was put forward on behalf of each of them through cross-examination and in their counsel’s addresses to the jury. Cross-examination on behalf of Li Makasa at both trials mostly addressed the events of the following day. His counsel cross-examined the complainant at the first trial on the basis that any sexual conduct with Li Makasa “be it the night before or be it that day” was consensual. It was not put to her that there was no sexual activity between her and Li Makasa on the evening of 30 August 2006. At the trial under appeal, his counsel addressed the jury on the basis that there was no evidence capable of proving beyond reasonable doubt that Li Makasa was in his room at the time of the alleged offences that evening.

211 Counsel for Tyrone Chishimba addressed the jury on a similar basis. However, whereas his counsel at the first trial cross-examined the complainant on the basis that there had been no conversation between Tyrone Chishimba and the complainant other than when he said goodbye to her, different counsel at the second trial put it to the complainant, in effect, that she had made sexual overtures to Tyrone Chishimba. That exchange began as follows:

212 The judge then reminded the complainant of the need not to go beyond a simple answer to the question. The cross-examination continued:

“[COUNSEL]

Q. There was also a time that evening when you were on your own with Mr Chishimba, with Tyrone, where you said to him you wanted to hook up with him as well?

HIS HONOUR: What?

HIS HONOUR: Look, please don’t go on.

[COUNSEL]: Thank you, your Honour.

213 Accordingly, at least so far as Tyrone Chishimba is concerned, the case put was that the complainant apparently wanted to have some sort of sexual activity with him and that he declined but invited her attention to one of the other accused.

214 Peter Mulenga’s case was that any sexual intercourse was consensual and that the Crown had not proved beyond reasonable doubt that he did not have an honest and reasonable belief that the complainant was over the age of sixteen. His counsel cross-examined the complainant at the first trial to the effect that, when the complainant changed her clothes in Li Makasa’s bedroom, the men in the room “had to be in there to see [her]” (AB 1183). The suggestion appears to have been that she deliberately incited their interest. He pursued a similar line at the second trial when he put it to the complainant that she was in the habit of asking boys (at the refuge at which she then lived) whether she was pretty. That line produced the following exchange (at AB 1751):

215 What the jury made of the suggestion that the complainant thought she was pretty, and so sought to attract attention of the kind that results in sexual intercourse with several men, after she had vomited all over herself is a matter of speculation.

216 Peter Mulenga was the only one of the appellants to agree to be interviewed by police. The jury watched the tape of that interview. A transcript of it was before this court.

217 Mr Mulenga made a series of statements during the interview which were left to the jury as deliberate lies (see AB 3485) including that he had not gone into Li Makasa’s house upon his return from the Meridian; that he had not gone into Li Makasa’s bedroom at all that night and that he had never had sex at Li Makasa’s house.

218 In addition, his description of events disclosed his appreciation of the state the complainant was in earlier in the evening. He said “we found this girl, she was blacked out, still had vomit all over her, I found her outside. She was on the lawn.” Significantly, Mr Mulenga also told police that he was talking on the telephone to his girlfriend outside while Tyrone Chishimba and Li Makasa were inside after they all returned from the Meridian. No telephone record substantiated that statement and it was also left to the jury as a deliberate lie.

219 As noted by the trial judge in his remarks on sentence, it is likely in light of the evidence of the complainant, together with the evidence of Mr Chinyani and the DNA evidence, that the jury would have been satisfied that many acts of sexual intercourse took place in Li Makasa’s bedroom on the evening in question (AB 31 to 32). Mr Chinyani’s evidence provided cogent evidence directly implicating the three appellants in participating in such conduct, together in the room at the same time and with the door shut. The only way in which Mr Chinyani’s evidence undermined the Crown case was on the issue of consent. However, his evidence touching on that issue (as to hearing laughter) was unlikely to have related to the time when the sexual intercourse first began.

220 I accept, as noted by Macfarlan JA, that any sexual intercourse after the intercourse on which the first count was based was not proved to have been unlawful. However it does not follow, in my view, that the only inference to be drawn from such conduct is of an interest in having only lawful sexual relations. In my view, it was open to the jury to conclude that later sexual activity demonstrated the appellants’ sexual interest in the complainant, and their preparedness to engage in such conduct with her in each other’s presence.

221 It was plainly open to the jury to take those matters into account in determining whether they were satisfied as to the existence of an agreement to have sexual intercourse with the complainant. Separately, it was open to them to reason that the agreement must have been to have such intercourse irrespective of whether or not the complainant consented, since she was asleep when it began. I do not think those conclusions impugn the jury’s acquittals.

222 Between the time when the complainant fell asleep and when she awoke, the uncontradicted evidence is that somebody must have closed the sliding door at least most of the way (it was shut when Mr Chinyani got home) and that somebody must have removed her shirt. On her evidence, she had gone to bed saying that all she wanted to do was sleep. I do not have any difficulty concluding, in those circumstances, that it was open to the jury to be satisfied beyond reasonable doubt that the commencement of sexual intercourse with her in that state by one of the men was evidence of an implicit agreement with the others to engage in sexual intercourse with her regardless of whether or not she consented.

223 I reject the submission put on behalf of the appellants that the evidence did not go beyond establishing “mere presence” in the room where the offences were alleged to have taken place. The inference available to be drawn from a person’s presence while another person commits an offence will vary according to the facts of the case. The presence of a man in a pub with a friend when a fight breaks out has a different complexion from the presence of a man in a small bedroom with the door mostly closed when a friend begins to have sexual intercourse with a drunken girl who is asleep on the bed. The failure to leave or intervene during such conduct is more significant. I do not characterise it as “mere presence”.

224 In my view it was open to the jury, bringing its common sense and experience of the world to bear, to infer the existence of an implicit agreement and intentional encouragement or assistance on the part of each appellant by their presence in the room in those circumstances.

**********

12/10/2010 - Paragraph inadvertently omitted from judgment as originally published. - Paragraph(s) [183]

13/09/2011 - Correcting subsection citation - Paragraph(s) 17

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Citations

R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228

Most Recent Citation

Kim Sean Mann v The Queen [2016] NSWCCA 10

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R v Zacharigh Eid [2017] NSWDC 76

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Cases Cited

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Statutory Material Cited

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CTM v The Queen [2008] HCA 25

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CITATION:	R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 August 2010
JUDGMENT DATE:	8 October 2010
JUDGMENT OF:	Macfarlan JA at 1; James J at 180; McCallum J at 181
DECISION:	(1) Grant leave to the appellants Chishimba, Makasa and Mulenga to appeal upon the grounds contained in their Notices of Appeal, other than Grounds 3 and 4 referred to in [22] of the Court’s reasons for judgment, leave to appeal not being required in respect of Grounds 3 and 4; (2) Refuse leave under rule 4 Criminal Appeal Rules for those appellants to rely upon Grounds 3 and 4; (3) In respect of Count 1 allow the appeals of each of those appellants and quash each of the convictions; (4) Direct that on this Count a judgment and verdict of acquittal be entered in relation to each of those appellants; (5) In relation to Counts 8, 10 and 16, vary the commencement date of the sentence imposed upon the appellant Makasa so that the sentence in relation to the convictions on those Counts is imprisonment for a term of 2 years, consisting of a non-parole period of 1 year commencing on 4 March 2008 and expiring on 3 March 2009, with a balance of term of 1 year expiring on 3 March 2010; (6) Dismiss the Crown appeal against sentence, with reasons to be published subsequently; and (7) The effect of the above orders is that the appellants Chishimba, Makasa and Mulenga are entitled to be released from custody immediately.
CATCHWORDS:	CRIMINAL LAW – conviction appeal – whether on whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellants part of joint criminal enterprise to commit sexual assault on 15 year old girl – identity of actual perpetrator of sexual act unknown – whether appellants aware that sexual intercourse with complainant was taking place and that she was asleep when this commenced – whether inference could be drawn that appellants encouraged commission of criminal act - CRIMINAL LAW – criminal complicity – joint criminal enterprise – persons acting in concert – presence when crime committed – what constitutes encouragement to commit crime – correctness of direction as to recklessness as to consent of complainant
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986
CATEGORY:	Principal judgment
CASES CITED:	CTM v R [2008] HCA 25; (2008) 82 ALJR 978 Edwards v R [1993] HCA 63; (1993) 178 CLR 193 Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317 Giorgianni v R [1985] HCA 29; (1984 – 1985) 156 CLR 473 Jones v R [1997] HCA 56; (1997) 191 CLR 439 M v R [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Osland v R [1998] HCA 75; (1998) 197 CLR 316 Phan v R [2001] NSWCCA 29; (2001) 123 A Crim R 30 R v Coney (1882) 8 QBD 534 R v Cowell (New South Wales Court of Criminal Appeal, 26 July 1985, unreported) R v Russell [1933] VLR 59 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 Rasic v R [2009] NSWCCA 202 Sever v R [2010] NSWCCA 135 Tangye v R (1997) 92 A Crim R 545
PARTIES:	Regina (Appellant) Tyrone Chishimba (Respondent) Tyrone Chishimba (Appellant) Regina (Respondent) Regina (Appellant) Likumbo Makasa (Respondent) Likumbo Makasa (Appellant) Regina (Respondent) Regina (Appellant) Mumbi Peter Mulenga (Respondent) Mumbi Peter Mulenga (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/14576011; 2007/14576012; 2007/14574021; 2007/14574020; 2007/14575011; 2007/14575010
COUNSEL:	P Leask (Appellant/Respondent – Crown) R J Button SC (Appellant/Respondent – Chishimba) B Rigg (Appellant/Respondent – Makasa) W P Lowe (Appellant/Respondent – Mulenga)
SOLICITORS:	Solicitor for Public Prosecutions (Appellant/Respondent – Crown) McGowan Lawyers (Appellant/Respondent – Chishimba) Justin Lewis & Co Lawyers (Appellant/Respondent – Makasa) Bilias & Associates (Appellant/Respondent – Mulenga)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/11/0097 2007/11/0097 2007/11/0097
LOWER COURT JUDICIAL OFFICER:	Armitage ADCJ
LOWER COURT DATE OF DECISION:	19 August and 26 October 2009