Shanmugam v R

[2021] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Shanmugam v R [2021] NSWCCA 125

Hearing dates:

31 May 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Before:

Harrison J at [1]
Beech-Jones J at [54]
Cavanagh J at [55]

Decision:

(1) Dismiss the appeal against conviction.

(2) Grant leave to appeal against sentence but dismiss the appeal.

(3) Refuse leave to rely upon ground 3.

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual touching without consent – attempted sexual intercourse without consent – sexual intercourse without consent – judge alone trial – where appellant claims trial judge erred in accepting complainant’s evidence to required standard due to alleged inconsistency and implausibility in her accounts – where evidence provided by complainant was sufficient to establish that it was open to trial judge to be satisfied beyond reasonable doubt of guilt of complainant – where trial judge not required to give himself warning in accordance with section 165B of the Evidence Act 1995 – whether delay in prosecution created significant forensic disadvantage for appellant

CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive – whether sentence failed to apply principles of totality

Legislation Cited:

Crimes Act 1900 (NSW), ss 61I, 61KC, 344A

Evidence Act 1995 (NSW), s 165B

Cases Cited:

Binns v R [2017] NSWCCA 280

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Shanmugam [2020] NSWDC 482

R v Shanmugam (No 2) [2020] NSWDC 555

RP v R [2015] NSWCCA 215

Williams v R [2021] NSWCCA 25

Category:

Principal judgment

Parties:

Mithun Kumar Shanmugam (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Thorpe (Applicant)
C Young (Respondent)

Solicitors:
The Australian Legal Practice (Applicant)
The Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/17888

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court at Wollongong

Jurisdiction:

Criminal

Citation:

R v Shanmugam [2020] NSWDC 482;

R v Shanmugam (No 2) [2020] NSWDC 555

Date of Decision:

27 August 2020; 17 September 2020

Before:

Judge Haesler SC

File Number(s):

2019/17888

Judgment

1. HARRISON J: Mithun Shanmugam was found guilty on 27 August 2020 by his Honour Haesler SC DCJ following a judge alone trial on five counts as follows:

Count 1: sexual touching without consent – s61KC(a) Crimes Act 1900.

Count 2: attempted sexual intercourse without consent – s61I/s344A(1) Crimes Act 1900.

Count 3: sexual touching without consent – s61KC(a) Crimes Act 1900.

Count 4: sexual intercourse without consent – s61I Crimes Act 1900.

Count 5: sexual intercourse without consent – s61I Crimes Act 1900.

2. Mr Shanmugam was sentenced by his Honour on 17 September 2020 to an aggregate term of imprisonment of 5 years with a non-parole period of 3 years.

3. Mr Shanmugam now appeals to this Court against his conviction and sentence on three grounds as follows:

Ground 1: The conviction cannot be supported having regard to the evidence.

Ground 2: The sentence imposed was manifestly excessive.

Ground 3: The trial judge failed to give a warning regarding the disadvantage to the appellant by the delayed complaint pursuant to s 165B of the Evidence Act 1995.

The Crown case

4. Mr Shanmugam, sometimes referred to in the evidence as “Matt’, and the complainant, “Susie”, worked together at a function centre in 2018 and early 2019. Mr Shanmugam was employed there as a waiter and manager. On the evening of 6 January 2019, the owners of the function centre organised a belated Christmas party for the staff at a local venue in Wollongong. It is uncontroversial that at least Mr Shanmugam, Susie and Claudia Farrugia ended up back at Susie’s flat at what appears to have been the early hours of the following morning.

5. Susie gave the following evidence:

“Q: Why did Matt come back with you?

A: Well, wasn’t really unusual – we hung outside of work fairly often. He only lived up the road, and we wanted to see how Claudia was going, so I just said for him to come back. We hung out at my house often, so it wasn’t really anything different for Matt to come over.”

6. Mr Shanmugam and Susie smoked cannabis and watched a movie downstairs before he suggested that they watch it upstairs. Ms Farrugia, who had been taken to the flat earlier in the night, came downstairs and watched the movie as well.

7. Susie and Ms Farrugia showered while Mr Shanmugam lay on Susie’s bed. Shortly thereafter, while he was showering, Ms Farrugia told Susie that Mr Shanmugam had asked her to sleep downstairs on the couch so that he and Susie could have the room to themselves. Susie said to Ms Farrugia, “Please don’t leave me alone”.

8. Mr Shanmugam asked Susie if it was alright if he wore boxer shorts to bed as it was hot. She indicated that she did not care. The three of them then went to sleep with Mr Shanmugam located between the two women.

9. Susie woke about 9am to the sound of Ms Farrugia vomiting in the bathroom. Ms Farrugia then returned to the bed. Susie said that Mr Shanmugam “pulled the sheets from under me and started moving his legs towards mine”. She noticed at about this time that he had an erection and that he was masturbating in the bed. Ms Farrugia once again left the bed to continue vomiting in the bathroom. At this time, Mr Shanmugam rolled over and started to masturbate against Susie’s bottom. This constituted Count 1 on the indictment.

10. Mr Shanmugam then attempted forcefully to press his penis into Susie’s anus, moving her night shorts to one side for this purpose. This constituted Count 2 on the indictment. Mr Shanmugam then put his hand down the front of Susie’s shorts and rubbed the exterior of her vagina with his hand. This constituted Count 3 on the indictment.

11. Susie said that she brushed Mr Shanmugam away, rolling onto her side. She said she was in shock and did not really know what to do. Mr Shanmugam then pulled her night shorts to the side and partly inserted his penis into her vagina, when Susie “quite abruptly” brushed him away. This constituted Count 4 on the indictment.

12. Mr Shanmugam then reached over the side of the bed to retrieve a condom. Susie took the opportunity to send a text message to Ms Farrugia. She said, “I flicked it [i.e. the phone] under the bed as quick as I could”. Mr Shanmugam had the condom on by then and Susie was waiting to hear from Ms Farrugia. At that point Mr Shanmugam inserted his penis in her vagina again, “but this time all the way in”. This constituted Count 5 on the indictment.

13. Susie sent a text message to Ms Farrugia at 9.12am. It said “Help”. Ms Farrugia did not respond.

14. Susie pulled away from Mr Shanmugam and then heard Ms Farrugia cough in the bathroom. Susie asked her if she was okay but heard no response. Susie said to Mr Shanmugam that Ms Farrugia had been in the bathroom for a while and he replied, “No, she will be.” Susie then lay back down, and Mr Shanmugam inserted his penis in her vagina again. These events were uncharged.

15. Susie then got up and took Ms Farrugia downstairs. Susie realised that Ms Farrugia’s phone was still in the bedroom and went back upstairs to get it.

16. Susie then told Ms Farrugia what had happened, complaining about Mr Shanmugam’s behaviour. She also complained to Maria Di Maggio on the same day.

17. The Crown case was also based upon the content of a series of text messages between Mr Shanmugam and Susie that began at 2.51pm on 7 January 2019. Despite their length, it is necessary for present purposes that they be reproduced here:

Mr Shanmugam:   Thanks for havin is [sic] Susie. Sorry if it was too much trouble.

Us *

Ps hope you’re feeling better now

Susie:         what was that last night?

Mr Shanmugam:   Umm 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

Susie:   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 and put it in. I pulled away multiple times.

Mr Shanmugam:   Omg omg no no. Shit

Fuck what have I done

I’m 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. 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.

Susie:   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 to not tale [sic] 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.

Mr Shanmugam:   I truly am sorry Susie. It isn’t your fault Susie please don’t beat yourself up. Like I said before I never had any intention of behaving to you in the way I did. It is extremely wrong what I’ve done and it was the the mix of alcohol and weed. I’m gonna give up on 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.

18. Mr Shanmugam also sent text messages to Ms Farrugia. These began at 3.06pm on the same day and are reproduced as follows:

Claudia:      Call you back in 20 with Dad sorry hahaha

Mr Shanmugam:   Oh ok

Coz Susie just messaged me

I feel super embarrassed

Claudia:      Why? What did she say?

Mr Shanmugam:   She just wrote what was that last night?!

Between us      

What did I do. Did I do something inappropriate

Claudia:   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 and she didn’t want me to leave her alone with you so I didn’t

Mr Shanmugam:   Omg

Fuck I’m so so sorry

Claudia:      You really upset both of us

You scared me and you upset her

Mr Shanmugam:   Oh Jesus I feel like a total tool now.

I’m extremely sorry Claudia 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

Claudia:   You haven’t hurt me it’s just like we were all fucked up I get it and you are like a brother to both of us and now I don’t want you going all awkward on me now

Mr Shanmugam:   No Claudia What I’ve done is extremely bad and unacceptable

I feel like killing myself now

Claudia:       Wait till I get out of the car with Dad and I’ll ring you

Mr Shanmugam:   Oh no

Claudia:       Just answer don’t be scared I just want to talk to you

Mr Shanmugam:   I feel really really bad

Claudia:      How are you feeling?

Mr Shanmugam:   Still upset. I did apologise to Susie and she did accept it but it’s not gonna be the same if u know what I mean

Claudia:   Yeah I understand, listen Matt we all fuck up from Time to time, it’s normal human behaviour , the main thing is you apologized she accepted you have to do your best to keep your head held high , you weren’t sober none of us were

Mr Shanmugam    That’s the things Claud’s. I’ve lost her trust and I can’t even trust myself now because If I did this while I was intoxicated that means my heads fucked

Claudia:   Look you scared me a bit because I’ve never see that side of you before, but I knew once you had sobered up you would have known what happened, I had a friend who’s been in the same position as you did something stupid while drink, three years later I’m still friends with them and they’ve forgotten about the whole thing, Matty don’t beat yourself up it will take time to get your head back in the right space but bad things don’t last, and things will slowly go back to normal

Mr Shanmugam:   I really hope it does. Thanks heaps for your patience and understanding. Once again I’m sorry Claudia

Claudia:   That’s ok Matty that’s what friends are for I hope we can remain friends, anytime you need a chat I’m here I know you’ve got Albs too

Mr Shanmugam:   Yeah we will. Thanks Claudia. Yeah I’ve been with all day he’s calmed me down as well

Claudia:   I’m glad, because I value your and Alberts friendship too, I’m glad you had him, I was meaning to message you not long after we spoke but as you knew I wasn’t in the best shape, my head is pounding so I’m off to bed, but if you need anything message me ok, Susie is ok and will be ok, chill with Albert and get your mind off things and I’ll see Thursday at work alright buddy (heart emoji)

Mr Shanmugam:   Will do

19. Finally, Susie and Ms Farrugia exchanged text messages starting at 9.12am in the following terms:

Susie:      Help

Claudia:   Tina WORK (contact details for Tina WORK) sent at 11.09am

Matt called (sent at 3.06pm)

Susie:      Said?

Claudia:    He said what did I do last night He said you messaged him do you want me to act like I know nothing

He fucking rang me in the car with Dad

I won’t message him back till you give the ok

Susie:      you can say It, I just did, it’s better to be straight up

Claudia:   Ok no worries

Hope miss Zoe has helped get your mind of things, remember I’m here if you need anything at all (heart emoji)

Susie:      thank you, honestly.

I’m sorry that you has to see me breakdown & that I didn’t come straight home with you. I wasn’t a good friend for leaving you on your own while I stayed out it was a very selfish thing to do.

I’m sorry I didn’t have the courage to tell him to go, and that you had to be unwell alone in my bathroom while it was going on.

zoey has helped and so did albert actually he came past and spoke to matt, his messages were worrying. I hope your feeling better?

thank you for checking in xx

Claudia:   Knew about would be good about it all, have you spoken to Matt since?? I’m glad Zoe helped you! And I hope he’s stopped sending messages. I’m ok now was just really worried about you, please don’t say sorry I’m the one who threw up all over your bathroom hahaha but thanks and thanks for

Just letting you know Matt spoke to me and apologized and told me he said sorry to you, he says he understands he’s lost our trust I said I’m glad he manned up and said sorry to you and appreciate him saying sorry to me I said things will kinda be awkward for a while I told him his is the last I want to speak of it, just wanted to tell you because I felt you had a right to knw and don’t what you feel like I’m betraying you by not telling you, so that’s the last I’ll speak of this. I know it will take a while to get your head clear but know I’m here and I’m phone call text away if you need anything I love you very much and will always be there for you! Love ya Susie (4 x heart emojis)

Susie:      thanks love

I messaged him a couple of times, his messages were worrying. I’m glad he apologised to you to. I appreciate you being honest, and letting me know. I’m glad I have zoey this week, I just have to accept I put myself in that situation and be smart enough not to do it again, and use it as a learning lesson. thank you, I booked back into my psychologist.

Sorry for al [sic] the drama, it’s certainly not what I intended for a Christmas party. thanks for being a good friend xx

Ground 1

20. The trial judge relied upon Susie’s account of what occurred to convict Mr Shanmugam on all five charges. It was submitted on behalf of Mr Shanmugam that there was an inherent inconsistency and implausibility in Susie’s accounts that should have raised a reasonable doubt in the mind of the trial judge. He contended that the different and changed versions given by Susie raised the substantial possibility that the trial judge was mistaken in accepting her evidence to the required standard.

21. Mr Shanmugam contended that Susie’s evidence that she sent the text message to Ms Farrugia saying “Help” at 9.12am, which she maintained was when the offences were occurring, did not accord with her evidence that the offences took place a short time after she awoke at about 5am. Susie gave the following evidence about the timing of the offences:

“Q. And did you say that happened at 5am?

A. I wasn’t aware of any timeframe at that point because I had drunk quite a lot that night, so I don’t know if my timeframes are correct or not. I was awoken to her throwing up and to me it probably felt like 5am, because we didn’t go to sleep, I don’t think for very long.

Q. Do you accept you told Senior Constable Phillip that it was 5am that you were awoken by Claudia throwing up in the bathroom?

A. I’m saying that I probably guessed the time, as I don’t recall the timeframe which we went to bed.

Q. So when you were telling Senior Constable Phillip what happened, you were guessing. Is that right?

A. I wasn’t guessing in what I said, but when it comes to time frames, it’s a little bit difficult to remember when you’re going through something traumatic. It wasn’t exactly at the forefront of my mind as to what time it was. I was trying to regather that the best I could when I was in a state of shock.

Q. Well at the time of speaking to Senior Constable Phillip, you knew you had sent a text message at 12 minutes past 9am to Claudia.

A. I hadn’t looked at the time, and obviously later in this had been looked at when I gave my statement. The time when I saw her, no, I hadn’t looked at --- overlooked that.

Q. You definitely told Senior Constable Phillip about the text message exchange between you and Matt, didn’t you?

A. I don’t know if you [sic] told the constable. Those messages were forwarded onto Dean. I’m saying I don’t remember the entirety of our conversation.

Q. You would accept that if you were woken at 5am to Claudia throwing up in the toilet, at text message at 12 minutes past 9 doesn’t make much sense does it?

A. I’m saying that the time I gave the 5am, I don’t know at the time if that was correct, and later, obviously realised it wasn’t. We were inebriated that night, so my timeframe is not something I recall if it was specifically 5am. That may have been when we’ve gone to bed, I don’t know. I wasn’t looking at a clock around me. All I know is that’s what I woke up to the sound of, and later I sent a text message. So no, it would have been 5am when we woke up, and I was not in a good place when I went and spoke with the detective initially.”

22. Mr Shanmugam submitted that this evidence about the timing of the offences does not make sense “when looked at rationally”. He submitted that if she woke at 5am and was the victim of multiple sexual assaults and sexual touching a short time later, her text message at 9.12am “must have been for some other reason”. He submitted that if there is doubt as to when the offences are said to have occurred, then there must also be a doubt as to whether Susie’s account is reliable.

23. The difficulty with that submission is that Susie unambiguously accepted that her original understanding or recollection that the offences occurred at 5am was not necessarily accurate. Indeed, the believability of her account is on one view enhanced by the fact that she did not purport to correlate the offences with the text message in a way that she could have if she were minded to fabricate a version that eliminated the type of discrepancy that Mr Shanmugam’s current submission seeks to exploit.

24. In any event, the trial judge’s resolution of this allegedly significant discrepancy is coextensive with his acceptance of Susie’s evidence and his rejection of the evidence of Mr Shanmugam. His Honour’s assessment of Susie was in the following terms:

“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 [to] 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.”

25. By contrast, his Honour’s assessment of Mr Shanmugam was as follows:

“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 (sic) 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.”

26. Mr Shanmugam drew upon the wisdom enshrined in what was said by Brennan J in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at [11]:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue…”

27. His Honour gave himself a direction in accordance with this authority.

28. I have reviewed the whole of the evidence in the trial. In particular, having regard to Mr Shanmugam’s submissions about it, I have also paid particular regard to the evidence of Ms Farrugia, Ms Di Maggio and Giuseppe D’Acunto. With respect to Ms Farrugia, Mr Shanmugam submitted that in the text messages she sent to him, the highest that the allegation got was that he “tried to have sex with her”. With respect to Ms Di Maggio, Susie told her that Mr Shanmugam had assaulted her that morning, whereas Ms Di Maggio only recalled being told by her during a phone call on the day of the events in question that he had “felt her up”. Ms Di Maggio also said that later in the week Susie disclosed that “he raped” her. Finally, Mr D’Acunto said that he was told by Susie that Mr Shanmugam had “throughout the night physically touched her”, was “inappropriate” and that he “tried to force himself on her”. Mr D’Acunto confirmed that Susie told him that in his evidence in the trial. However, in cross-examination, Mr D’Acunto admitted that in the statement he provided to the police some eight months before giving evidence, he did not mention being told about Mr Shanmugam or that he had touched Susie at all. Mr Shanmugam contended that these matters were inconsistencies or discrepancies that affected the reliability of Susie’s evidence.

29. In Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at [19], the majority said this:

“19 The test as expressed in Chamberlain (No.2) by Gibbs C.J. and Mason J., suggests that a verdict which in the view of a Court of Criminal Appeal is unsafe or unsatisfactory is necessarily a verdict that is unreasonable, or is not supported, at least upon the requisite standard of proof, by the evidence. For our part, we would think that there might be verdicts falling within the concept of miscarriage of justice, as that expression is used in the common criminal appeal provisions, by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt, as, for example, where there is some feature of the evidence which raises a substantial possibility that the jury may have been mistaken or misled: see Davies andCody v. The King (1937) 57 CLR 170, at p 180. Whether or not this be so, it is clear that the question whether a verdict is unsafe or unsatisfactory involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That function is not discharged merely by a consideration of whether there was a sufficiency of evidence to sustain a conviction, for it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict…

20 A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality…”

30. Having independently examined all the evidence, I consider that it was clearly open to his Honour to be satisfied beyond reasonable doubt as to Mr Shanmugam’s guilt on all counts. In expressing that opinion, I necessarily put aside the importance or significance of any advantage that his Honour may have enjoyed in seeing and hearing the witnesses at the trial. My assessment can by definition only be made upon the more limited review of the transcript of evidence and the exhibits in the proceedings.

31. The evidence given by Susie is compelling. She has not in my view been shown by cross-examination or otherwise to be unreliable or untruthful or to have resiled from her version of what occurred. The fact that Mr Shanmugam ended up sleeping in her bed says nothing about her insistence that the matters of which she complained were not consensual. Indeed, the terms and tone of the text message exchange between them later the same day are highly supportive of the fact that Susie did not consent to any sexual activity with him and that he well understood it. It was clearly open to his Honour to reject Mr Shanmugam’s account of the events to the effect that it was Susie who insisted that he stay and sleep in her bed after he said he was going home or that it was Susie who had initiated the “cuddling” with him.

32. The evidence in my opinion was sufficient to establish that it was open to the trial judge to be satisfied beyond reasonable doubt that Susie was the victim of five instances of sexual or indecent assault.

33. I note in passing that his Honour’s analysis of the evidence was thorough, logical and persuasive. However, it is no part of this Court’s inquiry to determine whether his Honour’s decision was “correct”. The present inquiry is directed to the assessment of whether his findings were not reasonably open. In this respect I gratefully adopt what was said by Davies J in RP v R [2015] NSWCCA 215 at [48] and [52] as follows:

“[48] For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard,

or as the joint judgment said in Filippou at [56],

[T]he question for the Court of Criminal Appeal was not whether it was ‘satisfied that the judge’s account was correct’ but whether her Honour’s findings as to the sequence of events were not reasonably open.

…

[52] The significant difference between a trial with a jury and a judge alone trial is that the judge is obliged to make findings of fact and to identify the principles of law applied by the judge: s 133 Criminal Procedure Act 1986 (NSW). The reasoning the judge has employed to reach the relevant findings is exposed to examination and analysis in the way an inscrutable jury verdict cannot be. The reasoning will identify what matters have been considered by the judge in making any finding. That enables this Court to determine at least whether there is no or insufficient evidence to support a finding or that the evidence was all one way or has misdirected himself or herself on a matter of law.”

34. In the present appeal, no suggestion is made that his Honour made a discrete error that invalidated his reasoning processes or vitiated his conclusions. Mr Shanmugam understandably directed his attention to the single question of whether his Honour’s findings were not reasonably open. In the case of an appeal from the decision of a judge alone contending that the verdicts are unreasonable, this Court is inevitably provided with the decision of the trial judge. It is in that sense artificial to maintain that any such judgment will not be informative and at least potentially influential in the decision of this Court. In the way identified by Davies J, the reasoning of a trial judge sitting without a jury is material available to this Court that assists it permissibly to identify the matters that have been taken into account or considered in making relevant findings.

35. As Adamson J emphasised in Williams v R [2021] NSWCCA 25 at [190],

“[190] … it is important, as the High Court said in Pell v The Queen, at [39], to proceed upon the assumption that the tribunal of fact (in this case, the trial judge) assessed the complainant’s evidence to be credible and reliable. The court examines the whole of the evidence before the tribunal of fact to ascertain whether, notwithstanding that assessment, the court is satisfied (because of inconsistencies, discrepancies or other evidence) that the tribunal of fact, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.”

36. Even though I am satisfied that his Honour’s conclusions were sound, I wish to re-emphasise that, having considered the evidence myself, I am otherwise independently satisfied that verdicts of guilty on all five counts were open to him.

37. I would dismiss Mr Shanmugam’s first ground of appeal.

Ground 3

38. Section 165B of the Evidence Act 1995 is in the following terms:

165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section--

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a

"significant forensic disadvantage" include, but are not limited to, the following-

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

39. It is not in contest that his Honour “failed” to give himself a warning in accordance with this section. That is unsurprising having regard to the fact that he was sitting without a jury and that he was not asked to consider giving such a direction. The latter consideration means that Rule 4.15 is engaged.

40. Mr Shanmugam submitted notwithstanding these matters that his Honour erred in not giving himself a direction regarding prejudice caused to him arising from the delay in the making of the complaint to the police. Susie reported the matter to Constable Louise Phillips on 14 January 2019, or 8 days after the incident, after taking a week of unpaid leave from work. Mr Shanmugam was later arrested and participated in an interview with the police on 17 January 2019 in which he asserted that he had used a condom that was discarded at the apartment. Mr Shanmugam maintained that forensic examination of the condom could have provided supporting exculpatory evidence on his account that he did not have penile/vaginal intercourse with Susie and that her DNA would not have been present on the exterior of the condom.

41. Although counsel for Mr Shanmugam did not ask for the direction in question, he did make submissions concerning delay in these terms:

“There is also evidence of a delay in one week in reporting the matter to the police. It is my submissions [sic] the complainant was aware that police would investigate whether any forensic evidence would be available and delayed making the report in an attempt to frustrate the procedures of the police.”

42. This Court was referred to its decision in Binns v R [2017] NSWCCA 280 in which there had been a delay of four and a half years between the alleged offence and the first complaint. A “focus of the appeal” was that if complaint had been made within days of the alleged incident, there may have been available DNA evidence to confirm or contradict the complaint. The Court found at [22] that:

“…under the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is ‘satisfied’ that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed.”

43. In R v Shanmugam [2020] NSWDC 482, his Honour dealt with delay at [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.”

44. However, his Honour rejected the submission by trial counsel that Susie’s delay in reporting the assaults diminished the power of her evidence.

45. In my opinion, the fundamental difficulty with Mr Shanmugam’s submission is that he does not specifically identify the existence of any significant forensic disadvantage. The hypothetical absence of Susie’s DNA on the exterior of the condom may well have been exculpatory. Conversely, the presence of her DNA on the condom would on her account of events have been inculpatory. However, the presence of Susie’s DNA on the condom would on Mr Shanmugam’s account have inculpated him falsely. Finally, in the events that occurred, the absence of the condom for biological testing may well have resulted in a significant forensic advantage for Mr Shanmugam having regard to the evidence that his Honour accepted. At his Honour’s remove from the events in question, nothing in the trial could raise these competing possibilities to any level higher than speculation.

46. I would refuse the grant of leave to Mr Shanmugam to raise this ground of appeal.

Ground 2

47. Mr Shanmugam contends that his Honour’s sentence was manifestly excessive. In accordance with well recognised authority, that is a submission that the sentence that was imposed was unreasonable or plainly unjust. Mr Shanmugam promotes that contention upon the basis that his Honour erred in failing properly to take into account the principles of totality described in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

48. Each count was part of a continuing course of conduct that started with sexual touching and culminated in two counts of sexual intercourse. The period over which the conduct took place was relatively short. It was arguably all part of a single course of conduct. However, in his remarks on sentence R v Shanmugam (No 2) [2020] NSWDC 555, his Honour described the offending as follows:

“[13] All these crimes occurred within a short space of time. They occurred in the complainant’s home; where she was entitled to feel safe and secure. All involved the violation of the friendship the complainant thought she had with Shanmugam and the trust she showed in him by allowing him to sleep in her bed after the party. His actions against her were persistent. The acts escalated in their severity. The attempt offence caused her pain. The acts of intercourse were of very brief duration. One brief act of penile vaginal intercourse was unprotected as a condom was not used. As with most such crimes they were invasive and degrading acts of personal violence, one reason for the high maximum penalties and for the s 61I offences, the standard non-parole period.

[14] The briefness of the acts and other circumstances do not place any [of] these offences in the middle of the range taking into account only objective features. Aggravating features, such as physical harm, ejaculation and threats, were absent. Despite the seriousness of what occurred the s 61I offences fall more toward the bottom of the range of what was none the less serious offending.”

49. Mr Shanmugam submitted that despite these matters identified by his Honour, there was significant overlap between or among the counts so that the aggregate sentence was excessive. In particular, Mr Shanmugam contended in effect that there was an irreconcilable tension between the length of the sentence and his Honour’s finding that the s 61I offences fell more towards the bottom of the range.

50. Mr Shanmugam does not suggest that his Honour erred in any particular way beyond an assertion that the sentence is manifestly excessive. In this context, it is instructive to consider his Honour’s remarks concerning the structure of the sentence he intended to impose:

“[29] I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Shanmugam’s offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17. Although one sentence could not encompass the criminality of all that occurred there can be considerable concurrence as each count was part of the one short event; each had some common features, the purposes of sentencing apply to each offence and those purposes overlap: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

[30] My findings in relation to objective seriousness and the subjective case for the offender provide reasons for departure from the standard non-parole periods and justify a finding of special circumstances. That said, the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].”

51. His Honour also said this:

“[31] [Mr] Shanmugam, in my assessment, is at low risk of re-offending. His background, age, relative immaturity, combined with the fact that he had no prior record and that this would be his first period of incarceration far away from family, warrant a significant element of leniency. But mitigating circumstances can go only so far. Objectively serious offences were committed.

[32] [Mr] Shanmugam offended against his friend and breached her trust in him. His actions were not wanted and he well knew this. As a consequence of his crimes he will lose his liberty and his dreams of a life in Australia are in ruins. He must spend a period in gaol. For crimes such as these retributive sentences are demanded so that others come to understand the consequences of acting against others without their consent. The sentence must also operate to ensure that dignity of the complainant is vindicated and express the community's disapproval of this serious offending.”

52. In my opinion, his Honour’s aggregate sentence of 5 years, with a non-parole period of 3 years, was neither unreasonable nor plainly unjust. This ground of appeal should be dismissed.

Orders

53. In my opinion, the following orders should be made:

1. Dismiss the appeal against conviction.

2. Grant leave to appeal against sentence but dismiss the appeal.

3. Refuse leave to rely upon ground 3.

54. BEECH-JONES J: I agree with Harrison J.

55. CAVANAGH J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. I only wish to add the following.

56. In Pell v The Queen ((2020) 268 CLR 123) the Court said at [39]:

“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence[18], in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

57. In this matter, the trial judge accepted the evidence of the complainant. I have carried out my own independent examination of the record in order to ascertain whether because of any inconsistencies, discrepancies or other evidence, the trial judge ought to have ascertained a reasonable doubt as to the appellant’s guilt.

58. In my view, the matters raised by the appellant such as the timing issue, the delay (slight) issue and the differing recollections as to the precise words used by Susie to describe what had happened are not such that, having accepted Susie’s evidence as credible and reliable, the trial judge ought to have entertained a reasonable doubt as to the appellant’s guilt.

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Decision last updated: 25 June 2021