Zurshig v R

[2021] NSWCCA 309

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zurshig v R [2021] NSWCCA 309

Hearing dates:

6 December 2021

Decision date:

16 December 2021

Before:

Basten JA at [1];
Adamson J at [9];
Wright J at [135]

Decision:

(1)   Grant the applicant leave to appeal against his conviction.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — leave to appeal granted — sexual intercourse without consent in circumstances where the victim had overdosed and was trying to get to hospital — whether Crown closing gave rise to a miscarriage of justice — consideration of principles governing the constraints on the Crown in closing — effect of Crown closing was that the applicant’s version was objectively improbable — defence closing sufficiently dealt with the Crown’s reliance on “perceived social mores and morals” — reference to the applicant being Mongolian was relevant to explain his limited English and ability to engage in meaningful discussion — applicant’s age relevant to the objective probability of consent — lack of “sexual appetite” relevant to objective probability of victim initiating physical conduct — Crown closing was not inappropriate — verdict was not unreasonable — complaint evidence, observations of professionals and CCTV footage assisted the Crown case on consent — open to the jury to consider that the objective probabilities favoured the Crown case and the applicant could not have believed that the victim was consenting — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Criminal Appeal Act 1912 (NSW), s 5

Criminal Procedure Act 1986 (NSW), s 293A

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

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

FX v R; GX v R [2020] NSWCCA 189

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330

Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

Onassis v Vergottis [1968] 2 Lloyds Rep 403

R v Birks (1990) 19 NSWLR 677

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category:

Principal judgment

Parties:

Zorigoo Zurshig (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
C Curtis (Respondent)

Solicitors:
LY Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/250415

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10 April 2020

Before:

Arnott SC DCJ

File Number(s):

2018/250415

Judgment

1. BASTEN JA: In circumstances fully explained by Adamson J, Zorigoo Zurshig has appealed against his conviction on two charges of sexual intercourse without consent. Neither ground of appeal involves a question of law alone and therefore leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). I agree with Adamson J that leave should be granted with respect to both grounds. Nevertheless, the appeal should be dismissed, for the reasons given by Adamson J, with which I agree. I would add the following observations.

2. Ground 1 alleged that the prosecutor’s address to the jury gave rise to a miscarriage of justice. Such a challenge requires a three stage analysis, along the following lines:

1. how would the impugned conduct of the prosecutor have been understood by the jury?

2. does such an understanding involve a contravention of the standards to which a prosecutor is expected to conform?

3. if a breach of those standards has been established, was the effect to deprive the accused of a fair trial?

3. In the present case, the only conduct complained of involved expressions used by the prosecutor in her closing address to the jury. I agree with Adamson J that counsel for the applicant sought to characterise the statements as prejudicial in circumstances where that characterisation was at best marginal. However, it should perhaps be added that whilst counsel cannot be expected to engage with a jury without some use of colloquial expressions, colourful language is best avoided, as is an appeal to instinctive responses. Particularly is that so in seeking to cast doubt on evidence given on oath by the accused person. Asking oneself, “do I believe that person?” and assessing his or her evidence accordingly, is an exercise a jury can readily be expected to undertake. To undertake the composite exercise of asking not merely “do I believe the accused?” but “do I believe the accused sufficiently to entertain a reasonable doubt as to the complainant’s evidence?” is not an exercise commonly undertaken (or at least not in those terms). It is, however, an exercise which will be essential for the proper resolution of the legal issues raised in a trial, according to a prescribed standard of proof. Suggesting conclusions in the vernacular is likely to distract the jury from that exercise: for that reason it should, so far as reasonably practicable, be eschewed by a prosecutor.

4. The complaints raised in the present case tend to rely upon an artificial expectation as to how the prosecutor’s address would have been understood. Even were that not so, the consequence of the language used was not such as to “so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.”^[1]

   1. Whitehorn v The Queen (1983) 152 CLR 657 at 664 (Deane J); [1983] HCA 42.

5. On no reasonable view was that test satisfied in the present case. Ground 1 must be rejected.

6. In relation to ground 2 I agree with the analysis of the evidence undertaken by Adamson J. In circumstances where the appeal court has not had the benefit of sitting through the trial, it must look for some aspect of the transcribed oral testimony and the surrounding circumstances as provided by other evidence, applying the experience which a judge can bring to the assessment of the evidence as a whole on the papers. In undertaking that exercise, there is nothing which raises a reasonable doubt as to the applicant’s guilt in my mind.

7. There were two features of the evidence which needed to be carefully considered, namely the inability of the complainant to recall much about events which occurred in the car, and the fact that she and the applicant were in the car for a period of some 50 minutes. Powerful support for the prosecution case, however, lay in the consistency of the accounts given by the complainant as to the sexual events which occurred, apparently towards the end of the period they were in the car, very soon thereafter and while she was greatly distressed. She knew what had happened without the evidence of the medical tests which confirmed penile/vaginal intercourse. Further, the jury clearly made their own assessments of the credibility of the complainant and the applicant. The transcript of their evidence provides no basis for doubting the jury’s conclusions.

8. Ground 2 must be rejected. I therefore agree with the orders proposed by Adamson J, otherwise for the reasons she provides.

9. ADAMSON J: Zorigoo Zurshig (the applicant) seeks leave to appeal against his convictions, following trial by jury conducted by Arnott SC DCJ, of two charges of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The maximum penalty for each offence is 14 years’ imprisonment with a standard non-parole period of 7 years’ imprisonment.

10. On 9 April 2020, the applicant was sentenced to an overall term of imprisonment of 4 years and 3 months to commence on 24 November 2019 and expire on 23 February 2024, with a non-parole period of 2 years and 3 months to commence on 24 November 2019 and expire on 23 February 2022, which comprised the following two sentences:

Count	Conduct	Sentence
1	Sexual intercourse (cunnilingus) without consent	2 years’ imprisonment to commence on 24 November 2019 and expire on 23 November 2021 with a non-parole period of 16 months to expire on 23 March 2021
2	Sexual intercourse (penile/vaginal) without consent	4 years’ imprisonment to commence on 24 February 2020 and expire on 23 February 2024 with a non-parole period of 2 years to expire on 23 February 2022.

11. The applicant’s grounds of appeal, if leave is granted, are:

“1.   The address to the jury by the Crown Prosecutor gave rise to a miscarriage of justice.

2.   The verdict of the jury was unreasonable and cannot be supported having regard to the evidence and is unsafe and unsatisfactory.”

12. Because of the width of ground 2, it is necessary to set out in some detail the evidence in the trial which will also provide relevant context for ground 1.

The trial

13. The applicant was assisted, throughout the trial, by Mongolian interpreters. He gave his oral evidence through an interpreter. On occasions throughout the trial, the trial judge adjourned the proceedings to accommodate the availability of such interpreters.

The Crown case

14. The Crown case was that the applicant had sexual intercourse (cunnilingus and penile/vaginal intercourse) with KB on two occasions during the night of Monday 6 August 2018-Tuesday 7 August 2018 without her consent, knowing that she did not consent or being recklessly indifferent to whether she was consenting.

The defence case

15. The defence case was that the Crown could not prove that KB had not consented as her state of intoxication had resulted in amnesia for much of the relevant time. Further, the applicant put the positive case that KB consented and that he knew or reasonably believed that she consented to both acts of sexual intercourse. The applicant relied on the circumstance that she had entered her contact details in his phone as being an indication that she consented to sexual intercourse with him.

The evidence in the Crown case

KB’s living arrangements and circumstances

16. In August 2018, KB, who was then 23 years old, lived in a two-bedroom, split-level apartment in Waterloo with her partner, Joshua, who was about 25 years old. They had met in August 2016 in Edinburgh, Scotland. In about March 2017, KB, who was Scottish, returned to Australia with Joshua, who was Australian. They shared the apartment with Chad, the lessee, who was then about 43 years old. There was a security door to the apartment block which required a swipe card to open it. It could also be opened from within the apartment through a buzzer system. The receiver was located inside the apartment near the front door and was generally answered by Chad, whose bedroom was on the lower of the two levels of the apartment. At that time, there were two swipe cards; one was in Chad’s possession and the other was shared by KB and Joshua. Usually, Joshua kept the swipe card as he arrived home from work earlier than KB did.

KB’s prescribed medication

17. On the morning of Monday 6 August 2018, KB had taken 20mg of Fluoxetine in accordance with her prescription and probably one Valium tablet. In cross-examination, KB said that she was taking Fluoxetine in accordance with a prescription obtained from a local doctor but she had been medicated with Fluoxetine since she was about 17 and living in Scotland. In August 2018, the prescription dose of Fluoxetine was one 20mg tablet every morning. She was also taking Valium which had been prescribed for her for the first time in July 2018 to address an increase in her anxiety. She would take Valium when she was “feeling overwhelmed with nervousness”, which tended to happen in the morning when she was at work. According to Joshua, he had been prescribed Valium for the purposes of an international flight. The remaining tablets were in a receptacle in the apartment.

The evening of Monday 6 August 2018 and the following morning

18. On the evening of Monday 6 August 2018, KB arrived home from her work in an architect’s office at about 7pm. Joshua and Chad were already home. Joshua cooked dinner. KB was anxious because the previous week she had fallen asleep on a bus and, when woken by a police officer, had scratched the officer. She had read the police statement and noted the description of her behaviour. Due to her intoxication at the time, she could not recall the details of the incident but did recall that she had been angry. She expected that she would be charged but had not yet been notified of the charge. She had called the police station every day and constantly checked her emails to ascertain whether she had been charged and what the charge was. As she explained in cross-examination, she “needed clarity on what had happened.”

19. At that time she was suffering from depression, anxiety and alcoholism, which caused her to have difficulty sleeping. She was consulting a psychologist to help her with these matters. Later that evening, after KB, Joshua and Chad had gone to bed at about 10pm, KB got up again and went to the living room because she wanted to be alone and drink alcohol to help her to sleep. In her evidence, KB accepted that, with the benefit of hindsight, she was dependent on alcohol as at August 2018 although at the time she “might have been in denial”. During the period during which she was drinking she would experience blackouts, being periods during which she could not recall what had happened.

20. At some point in 2018 (KB could not recall whether it was before or after July 2018), Campral was prescribed to address her withdrawal from alcohol.

21. KB said in cross-examination that she only really drank when Joshua was not there and that it had been her habit for the previous two months to open a bottle of white wine at about 10pm and drink it. The wine which she drank on the evening of 6 August 2018 had an alcohol concentration of about 11%. Joshua was aware that KB was, on occasions, drinking a bottle of wine in an evening and said that it had been “pretty routine” for “at least a couple of months.”

22. At 11.14pm, KB rang the police station again from the living room and was told that the police officer would not be on duty for another three or four days. She found the suspense “petrifying” and “panicked”. She took three or four Valium tablets and a couple of anti-depressants. She sat for about 15 minutes before taking “another handful of Valium.” At that time, her motivation was to harm herself as she was feeling suicidal. Subsequently, she became worried that she had taken too many tablets. She had not previously taken a combination of Valium and alcohol (since she took Valium in the morning and drank alcohol at night). At 11.30pm, KB sent herself a text which listed the medication she had taken as follows:

“Overdosed on

X6

Valium under prescription name

Joshua …

X3 fluoxotine [Prozac, an anti-depressant]

X 4 paracetamol [Panadol]”

23. KB confirmed in cross-examination that the quantities of medication she had noted in the text did not include the medication she had taken that morning.

24. At about that time, KB decided to go to hospital because she appreciated that she “had taken too many Valium and … was feeling suicidal.” Her intention was to book an Uber as she felt that Joshua had “been through enough with [her]”, meaning that she did not want to ruin his life with her problems.

25. Mr Farrar, a forensic pharmacologist called in the Crown case, opined that, at 11.30pm on 6 August 2018, KB’s blood alcohol range would have been between .14% and .2% and would “most likely” have been .17%. He noted that her blood alcohol level was .11% at 3.31am.

26. When KB booked the Uber she nominated a pick-up address other than her home address. She was unable to say why she had done so but speculated that she might have nominated an address “five minutes away”. Her phone also recorded that she had nominated a destination a couple of doors away from her home. KB was also unable to explain this. Mr Farrar opined that the specification of an incorrect pick-up address and drop-off address was consistent with alcohol-induced cognitive impairment.

27. Unaware of the deficiencies in her Uber booking, KB picked up her bag, put on a jacket, left the apartment and went down the hallway, through the security doors and waited at the bottom of the steps outside the apartment block for the Uber.

28. CCTV footage taken from outside the apartment block showed KB appearing outside the apartment complex at about 11.48pm and lighting a cigarette. Although KB had no memory of this, she confirmed that Joshua and Chad smoked and that she “may have taken one of their cigarettes.”

29. Mr Farrar was shown the CCTV footage. He noted that KB was able to descend the stairs normally. He explained in re-examination that the stairs were relatively shallow (which made them easier to navigate) and KB’s familiarity with the stairs prior to that evening would have helped her to descend them even while intoxicated as there is an element of learning in the performance of psychomotor tasks.

30. When KB reached the bottom of the stairs, she appeared to be leaning against a wall, which was consistent with her supporting herself. Mr Farrar described her walking and then stepping back which he considered showed that she was unable to “walk and stop in a normal fashion.”

31. Messages on KB’s phone (screenshots of which were tendered) recorded that her Uber request had been accepted at 11.50pm, the driver had arrived at the specified location at 11.57pm, phoned her at 11.58pm and the trip was cancelled at 11.59pm. KB had no recollection of what had happened between this point and finding herself in the applicant’s car. In cross-examination, she said that she “may have believed it was [her] Uber.”

32. The CCTV footage showed that KB arrived at the location of the applicant’s vehicle at about 11.52pm and entered the vehicle at about 11.54pm.

33. KB recalled being in the front passenger seat of a car “closely seated next to” a man whom she did not know (the applicant), who “might have been Asian”, with a “slightly rounded face”, “[n]o facial hair”, “a little bit chubby”, of average height and wearing a T-Shirt. The man caused the passenger seat to recline while she was in it. She recalled his tongue in her mouth and that her pants were off and he was “down at my legs”. She could not recall whether her pants were “just at the bottom of [her] ankles or if they were completely off.” His mouth was “down by [her] vagina.” She also recalled that he was lying on top of her. She felt discomfort when he penetrated her. KB was very scared and not in control. She felt that she could not move even though she did not like what was being done to her. He performed oral sex on her and also penetrated her vagina and “satisfied himself.” She thought that he had kissed her and remembered his face being “disgustingly close.” KB did not recall having any discussion with the man. KB was adamant that she had not consented to the acts of intercourse and said that she would not have consented whether she was sober or drunk.

34. KB was shown a photograph of a screenshot of the applicant’s phone which showed her contact details having been recorded. She agreed that it was likely that she had entered her contact details in the phone although she had no recollection of doing so. The screenshot of this entry showed that, after KB’s number (which had been correctly entered), there were two stray commas, “,,”.

35. External evidence established that KB was in the car with the applicant for a total of about 50 minutes. Of the total, very few minutes were accounted for by activities, such as the taking of the photographs, the video chat with the applicant’s friend (referred to below) and the two acts of intercourse, which were the subject of the charges. Mr Farrar could not exclude the possibility that the applicant had fallen asleep during that period.

23. The Crown called Munkhsaithan Ayush, a friend of the applicant’s who lived in Mongolia, and who gave evidence from Mongolia. He said that the applicant called him on Facebook Messenger when the applicant was “in quite a dark room, and he was hugging a woman.” He described the applicant’s demeanour during the call as being “very open” and he said that the applicant talked a lot which made him think that the applicant “might have [had] a couple of drinks.” Mr Ayush and the applicant asked each other how they were. Mr Ayush said:

“I didn’t say anything else, because my friend, he has a wife and two kids here, and, although we’re friends, he was hugging a woman and [I] didn’t feel comfortable and I don’t remember anything else that I said.”

37. Mr Ayush said that he hung up the phone because he was embarrassed to see the applicant with another woman because he was married. When he gave evidence at the trial on 16 December 2019 he could not remember the appearance of the woman and what skin colour or apparent ethnicity she was. The police were not able to identify any record on the applicant’s phone of this call, although there were other calls between Mr Ayush and the applicant on other days.

38. Mr Ayush said that “about a month ago” (November 2019), he had been contacted by the applicant who told him that he was a suspect in a criminal case involving allegations of sexual assault and that he was “in trouble”. He asked him whether he remembered anything about “that phone call we had”, to which Mr Ayush responded that he did not. Mr Ayush explained that the applicant used to call him frequently and that he tended to “mix up all the calls between each other”. In cross-examination, Mr Ayush confirmed that this was not the only conversation he had had with the applicant which had involved the applicant being with a woman who was not his wife.

39. The Crown also called the applicant’s brother Zagdasambar Zurshig (Zagda), to give evidence. Zagda said that his brother rang him at 10.08pm Mongolian time on 6 August 2018 (which was around midnight on 7 August 2018 in Sydney) when his brother was with a “foreign woman … with big eyes and yellow hair.” The applicant introduced the woman to his brother by saying that she was his neighbour and that they had “just met.” He said that the applicant’s head and the woman’s head were close to each other and that she was smiling. The applicant had his arm around the woman’s shoulder. Zagda considered that the applicant had “had some alcohol.” The call lasted for one minute and six seconds. In cross-examination, Zagda confirmed that he had told police that the woman had “a white complexion, mid-length hair, the colour that was similar to late Autumn leaves, a yellowish colour” and that she was “very friendly.” The applicant had told Zagda that they were close although they had only just met. The applicant introduced the woman to his brother and she said her name.

40. An analysis of the applicant’s phone showed that at 12.07am on 7 August 2018, the applicant made two calls to KB’s number. Analysis of KB’s phone revealed that, at 12.14am, two photographs were taken of KB and the applicant who appeared to be kissing her cheek. KB did not recall the photographs being taken.

41. The CCTV footage showed KB getting out of the applicant’s car at about 12.49am. At 12.53am, the applicant made another call to KB’s phone.

42. KB agreed that the CCTV footage showed the man (the applicant) walking calmly away from the car, “guiding [her] but not forcing [her]” and waiting outside her apartment building with her until she was safely within the unit block. The CCTV footage showed that KB disappeared from the screen near the entrance door at about 12.58am. A CCTV camera from another angle showed KB entering the building at about 1.01am.

43. Mr Farrar was shown the CCTV footage of KB returning to the apartment block. He noted a pronounced lateral sway, which is consistent with alcohol-induced impairment, as well as an inability to stand. He also observed her veering forwards and steadying herself on what appeared to be a railing.

44. KB returned to the apartment and pressed the buzzer as she had left her swipe card with Joshua (so that he would not be stuck in the apartment if he wanted to leave at some point). Chad heard the buzzer on the intercom and got up to press the button which opened the sliding door to the apartment block. After he had opened the door in response to the buzzer he went back to bed as he had to work in the morning. Chad subsequently heard KB crying and talking to Joshua.

45. Joshua, who had been asleep since going to bed at about 10pm, heard the buzzer. When he heard KB sobbing, he got up to see what was wrong. Joshua described her as “shaking, crying quite a lot” and “very, very upset.” He recalled that her speech was slurred. She was on the mezzanine level “curled up in a ball” with “a jacket covering her.” Her speech was “slurred and she was very slow in speaking and moving.” She was also “very shaky” and “quite heavily intoxicated”. She smelled of alcohol and cigarettes.

46. KB’s next memory was of standing on the stairway between the first and second floor of her apartment, crying, and being hugged by Joshua, who was asking her what happened.

47. According to Joshua, KB told him that she had overdosed on Valium and had tried to take herself to hospital in an Uber. He suggested that they go to hospital. He went back to the bedroom to get dressed. While he was there, KB came into the room and told him that she had been sexually assaulted. When he asked her what had happened, she told him that she had tried to take an Uber and that when she had got into the Uber, the driver had locked the doors and started groping her and had penetrated her. Joshua considered it to be of “utmost importance to take her to the hospital straightaway.” Joshua accepted in cross-examination that he had told police when he had been interviewed by police on 7 August 2018 that KB had said, “I think I have been sexually assaulted.”

48. At 1.09am, they booked a lift to St Vincent’s Hospital (St Vincent’s) using a ride-sharing application, Taxify. According to Joshua, KB, who was still obviously distraught, told him that her assailant was “fat and disgusting, either Filipino or Indonesian, or of that appearance”, and that he had reclined the seat and “gone down on her”, and then “had penetrated her.”

49. At 1.12am on 7 August 2018, the applicant sent a text message in Mongolian which said, “[p]lease get my food tmrw [tomorrow] morning I am sleeping in my car”. The applicant confirmed in his evidence (which is summarised separately below) that he had sent this message to the younger man who was renting the second bedroom in his brother’s apartment.

The admission to St Vincent’s Hospital

50. KB and Joshua arrived at St Vincent’s at 1.24am. She presented at the Emergency Department at 1.36am. KB recalled urinating in a jar in the Emergency Department and providing a blood sample. The nurses put KB in a bed in a ward where she went to sleep and stayed asleep for about half an hour. Joshua sat on the chair next to the bed. The nurses roused her but this took some time as she was in a deep sleep. When the nurses at the hospital were told that KB had been sexually assaulted, they told Joshua and KB that she would need to go to Royal Prince Alfred Hospital (RPA) where there is a sexual assault clinic.

51. The St Vincent’s records noted the following:

“HPC: Pt [patient] has felt low in mood for the last week- awaiting a file report from police, stressed about this.

Tonight while at home white boyfriend was asleep pt drank 1 bottle of wine, at 11pm took diazepam 6 tablets, paracetamol 3 tablets and fluoxetine 2 tablets. Pt states she was trying to escape. Has long-standing suicidal thoughts but denies suicide attempt.

Pt caught an Uber to come to ED [Emergency Department] for assessment.

Pt reports alleged sexual assault while in Uber. Pt not wanting to elaborate or describe this.

Initially not wanting forensic/medical assessment or counselling regarding this. Pt offered referral for RPA sexual health service. Pt eventually willing to attend.

Further details of events not described- pt preferring to talk directly to sexual health service.”

52. While KB was in St Vincent’s, she looked at her phone, saw that there was a communication from an unknown contact (“MGL Zorigoo”) and suspected that it might have been from the man in whose car she had been. She also noted that there was a message from Uber charging her a fee for the trip that had been cancelled.

53. Also while KB was in St Vincent’s, Joshua noticed that her purse was not in her handbag and drew it to KB’s attention. KB was upset because she had a sentimental attachment to the purse. Believing that the man in the car (the applicant) might have her purse, KB sent him a text at 3.21am as follows:

“Hey, I can’t seem to find my purse after being in your car. It has huge sentimental value to me. It’s got all my personal details in it. It’s black with an abstract pattern. Do you think you can have a search for it and you can send it to me. I'm happy to pay for costs. There is no material value total it. It really does mean a lot to me as my mother gave it to me after purse was stolen from me in Sydney.”

54. The applicant’s phone revealed that she had called the applicant’s number at 3.43am. The call was answered. She confirmed that this was the call she had made to him about her purse. The applicant said that she had subsequently found the purse at her home.

55. While KB was still at St Vincent’s, she Facebook-messaged her sister, who lived in Scotland, and told her what had happened. The Crown tendered screenshots of their messages which recorded the following exchange:

KB

KB’s sister

Hi, [sister’s name]

Hey what’s up?

You okay?

Sorry my phone on charge

I was raped.

What?

What?

I overdosed in medication last night so I did not want to bother Josh called an uber

The uber didn’t show up or whatever but this other guy put me in his car

What? Did you call the police?

Wtf [what the fuck]

I’m in the hospital because I overdosed I don’t want to report him

I was so scared he was going to do something worse to me the doors were locked

[KB] you need to report him and get a rape kit right now

And [I] just wanted to get away

Did he drop you at the hospital

No he was right outside my flat

What on Earth? Explain this to me from start to right now

…

Right what? You’re not making sense so go from outside your flat and explain

I feel disgusting

I don’t remember clearly. I had 6 valium 3 paracetamol and 2 fluoxotine

[KB] you need to tell the people in the hospital.

Tell them

Please, even if you’re not sure.

They need to test you this person could have any disease

I packed my things and left the flat because I didn’t want to bother Josh

I had the intention of going to RPA hospital. But the uber didn’t show up. Some how this guy led me into his car

It’s my fault

Im so disgusted he was so disgusting

I just didn’t know how to get away

56. KB’s evidence at trial was that she did not recall sending these messages but she accepted that she “must have sent [them].”

57. KB’s sister rang KB after the exchange of messages. Her evidence was:

“[KB] said that she was in hospital and that she felt disgusting and violated and that her body felt heavy and she felt ashamed because someone had done something to her against her will, essentially, and I asked her if she was going to call the police because I was trying to encourage her to get a rape kit completed. To which she said, ‘She wasn't sure she wanted to do anything.’ And I - I encouraged her more and then when I hung up with her, I also called the hospital, myself.

… I just wanted to make sure she had informed them of the circumstances of why she was there because, at the time, she was still quite confused on the phone where exactly - what was happening. I just wanted to make sure that she had told them and they told me, ‘Yes, she has told them, she just hasn't decided whether she wants to press charges.’”

58. KB’s sister said that KB gave the following description of the incident itself:

“She said that a man put her in his car - sorry, she said, ‘She was trapped.’ She didn't say what happened, I didn't ask. She just said, ‘She felt trapped.’ She kept repeating that she felt trapped, she didn't know what to do and she said that, after it was finished, she was so scared that she just said it was okay and I’m sure she told me she - she - afterwards, she just wanted to get away and she left. I don't know - sorry.”

59. In cross-examination, KB’s sister was asked about whether KB had said that she “fled” from the applicant. KB’s sister said that KB had told her that she was scared of what he might do next and scared that he might do something worse, like kill her. KB’s sister also said:

“She didn't say that she fled because of that fear, she said - I think she was trying to justify - as in, that's all she felt. She had to explain to me why she didn't do anything at the time of the actions, because she was trying to explain to me that she felt extremely scared. So she said it was okay to try and get away. That's the impression I got from my exchange with her.”

60. At about 4.12am, Dr Germann, a Registrar in Emergency Medicine at St Vincent’s, attended KB. He noted that she was suffering from “mild alcohol and benzodiazepine intoxication and alleged sexual assault.” The notes recorded that her blood alcohol level at 3.31am was 0.11%. She was observed at St Vincent’s until 6.56am.

61. As St Vincent’s did not have a sexual assault unit, she left there at about 7am, intending to go to RPA. KB and Joshua took an Uber home to change clothes. KB did not have a shower as she had been told by nurses at St Vincent’s that it was necessary to preserve any evidence and that a shower might eradicate such evidence.

Admission to RPA

62. KB then went alone to RPA as Joshua decided to go to work. However, he quickly changed his mind and followed her to the hospital in an Uber. His Uber ride began at 8.17am and concluded when he arrived at the hospital at 8.31am. When he arrived, KB was already being seen by nurses there.

63. Various tests and procedures were conducted at RPA. KB was examined and assessed by Dr Rosemary Isaacs at RPA’s sexual assault clinic. The consultation began at 10.15am and concluded at 12.20pm. Dr Isaacs recorded in her clinical notes that KB had told her that as a result of her anxiety the previous evening she had drunk almost a whole bottle of wine, and taken six Valium tablets, three paracetamol tablets and one or two Fluoxetine (Prozac) tablets. KB had also reported that she decided to go to the hospital and had called an Uber, that she had descended the stairs from the apartment block at about midnight and that her memory of what followed had been patchy. KB told Dr Isaacs that she was in a car; the seat was adjusted into a reclined position; she was lying down on the reclined seat; and the man took her trousers off, felt her breasts with his hand and “went down on [her]”. She told her that “he was at [her] vagina with his mouth and tongue” and that he had taken his top off and got on top of her and penetrated her. Dr Isaacs had clarified with KB that she meant that he had put his penis into her vagina. KB also reported that she had later found her underpants in her trouser leg. She told Dr Isaacs that he had kissed her and that it was possible that he had licked her breasts. She also told Dr Isaacs that she thought the man had raped her and stolen her purse.

64. Dr Isaacs noted that KB was “lucid and clear” in providing her medical history but that when it came to describing the penile-vaginal intercourse, KB had put her head down and wept. Dr Isaacs performed an examination of KB, including of her genital area, which was tender. KB complained of pain or discomfort when Dr Isaacs took the vulval swabs inside the labia minora. There was no visible injury. Dr Isaacs took specimens from the low and high vaginal canals which were sealed, placed in secure storage and then collected by the police.

65. The samples were tested by the Forensic and Analytical Science Service. The sperm samples from the high vaginal swab and smear had the same DNA profile as the applicant’s.

66. Dr Isaacs explained that Diazepam (Valium) is a depressant in that it slows down the thinking of the person who has taken it; it also relaxes muscles and makes the person sleepy. It takes effect within about 15 minutes but the full effect is experienced about 30 minutes after it has been taken. Dr Isaacs also said that there is a multiplying effect when Valium and alcohol are taken together. She opined that it would be expected that the amount of Valium taken even without alcohol in the present case (where KB’s weight was estimated to be 60kg) would make the user “extremely drowsy” and could cause amnesia. In cross-examination, Dr Isaacs accepted that disinhibition was a possible effect of consumption of Diazepam (although Mr Farrar’s evidence was to different effect, as referred to below).

67. At about 1pm, detectives from Redfern Police Station arrived and spoke to KB. At about 4pm, the detectives took KB and Joshua to Redfern Police Station where KB and Joshua were separately interviewed and provided statements.

Expert evidence

68. The Crown called Mr Farrar, a forensic pharmacologist, who opined that if KB took the Valium at 11.30pm, the peak would have been between midnight and 1.30am and her peak blood alcohol concentration would have been some time between the cessation of drinking (about 11.30pm) and 12.30am. He said that both alcohol and Valium cause sedation, which would be at least additive and potentially multiplying. They also cause amnesia and impaired cognition. Further, alcohol also interferes with psychomotor function (the ability to make voluntary movements through the brain). Such interference may cause a person to lose the ability to speak properly and cause the person’s speech to become slurred.

69. Mr Farrar opined that alcohol could have a disinhibiting effect, but disagreed that Valium usually had that effect. Mr Farrar accepted, in cross-examination, that people who were intoxicated with alcohol could engage with another person, including intimately, but not have any recollection of the events afterwards when the person regained sobriety. In cross-examination, Mr Farrar agreed that he was aware of a large university study conducted on white students in California where many people drank substantial quantities of alcohol, had sex and were found not to have any memory of it.

70. Mr Farrar was asked about KB’s ability to insert her phone number into the applicant’s phone. He opined that all that it showed was that she was capable of doing that particular task and did not indicate that she was not otherwise suffering cognitive impairment.

The police investigation

71. As referred to above, police interviewed KB and Joshua on 7 August 2018. Police interviewed other witnesses, such as Chad and KB’s sister (who was in Scotland) about a year later. KB’s sister was contacted in July 2019 and Chad gave a statement in August 2019.

The applicant’s recorded interview

72. On Thursday 9 August 2018, the applicant accompanied police to Redfern Police Station. They confiscated his phone, which was subsequently analysed. The applicant consented to a buccal swab of DNA being taken from his mouth. He agreed to be interviewed by police and was provided with an accredited Mongolian interpreter. He said that he was staying in Waterloo with his brother and his brother’s family, having arrived from Mongolia on 4 August 2018. The applicant said he came for “travel and tourism” on a tourist visa and had not been working in Australia. He said that it was his third trip to Australia and this time he intended to stay for only a fortnight although he did not have his return ticket confirmed. The applicant said that his brother, who was dependent on his wife, who was a student, had been in Australia for about a year.

72. The applicant said that he owned a Prius car, which he had driven for Uber. He said that he last drove for Uber (meaning UberEats) the previous Sunday (which would have been 5 August 2018). He said that on the night of 6-7 August 2018, he was sleeping in his car because he had consumed three or four bottles of beer, which made him snore loudly. He said that an Australian woman whose first name he recalled, had come outside at about 11pm on the evening of 6 August 2018 and asked him for a cigarette. The applicant said that he got his cigarettes and they had “quite a few cigarettes together.” He said that he became cold and got into his car. Later, the woman had also got into the car. They were both sitting in the front seats of the car and “got to … know each other.” He said that the woman gave him her number and then made a call from her phone to his phone.

73. The applicant showed the police his phone, which recorded three calls at about 12.53am from KB’s phone to his phone, as well as a text sent at 3.51am regarding her purse (referred to above). The applicant also showed police a photograph of him and KB which he had taken at 12.14am. He said that he was using an application, Transpeller, to try to understand what she was saying. He said that he gave her the rest of his packet of cigarettes and took her to the entrance of her building. He said that he then got back into the car and slept in his car. He said that KB was speaking English and he did not understand her but that she had seemed “normal”, was “reasonable” and was “walking normally.” He said that she told him that she was “a little bit intoxicated” and said that he could smell alcohol on her. He denied that the photograph showed him kissing KB and said that their faces were “very close” for the photograph.

74. The police put to him that he had had oral sex and penile-vaginal sex with KB, both of which he denied. He also denied that he had ever kissed her or that anything “romantic” had happened between them in the car. He denied that either he or KB had removed any item of clothing. He said that he had not seen KB since that night. The police put KB’s police statement to the applicant. He agreed that he had gone to the boot of his car to get some cigarettes. He denied that she had fallen asleep in the car or that she had ever appeared sleepy while they were together. He estimated that they had been together for about 20 minutes. He said that if she had been drunk he would not have got her inside his car and he would have taken her to her home instead.

75. The police asked him whether there was any reason why his DNA would be located on any tests undertaken by KB, to which he responded, “[n]o way.” The applicant told police, in answer to their questions, that he was married with two children, aged 14 and 3, who are all in Mongolia. He said that his wife and children were planning to come to Australia in October so that his wife could study. The applicant told police that he worked in construction in Mongolia and was intending to return on 20 August 2018.

76. It was an agreed fact that the applicant was arrested on 14 August 2018.

Documentary evidence relating to the applicant

78. The Crown tendered documents relating to Uber deliveries which the applicant had performed on the afternoon and evening of 5 August 2018, which amounted to 17 deliveries and 10 trips. Detective Senior Constable Hanson, the officer in charge of the investigation, confirmed that Uber had also provided to police a copy of the applicant’s passport and driver’s licence which had been provided to Uber as part of his application to be an Uber driver.

79. Detective Hanson confirmed that it was not necessarily possible to retrieve items that had been deleted from a phone. She also accepted that it was not possible to determine whether the applicant had used an application to translate what KB was saying when they were together.

80. It was accepted that the applicant had no previous criminal convictions.

The evidence in the applicant’s case

The applicant’s evidence

The applicant’s evidence in chief

81. The applicant said that he had been to Australia on two prior occasions and had purchased the Prius vehicle on one of those occasions. It was kept in a car space allocated to his brother’s apartment. He had come to Australia as there was no construction work in Mongolia from October to February as it was too cold. He arrived on 4 August 2018 and stayed with his brother in Waterloo. He worked for UberEats on 5 August 2018. On Monday 6 August 2018, he met with a Mongolian friend in Strathfield and, as referred to above, had three or four beers. He returned to his brother’s apartment at about 10pm. As his brother was cross with him because the applicant was drunk, the applicant offered to sleep in his car. As the car was in the garage and there is no internet in the garage, the applicant asked his brother to drive the car outside so that he could speak to his wife and children on his phone. He said that the car was parked outside the building at about 11pm.

82. The applicant said in his evidence in chief that when he told police that he had not had sexual intercourse with KB, that was not true. He admitted that he had had intercourse with KB. He said that she had approached him while he was in the car and asked him for a cigarette. He had asked her whether she lived in the apartment building and he had said that he had lived there too. He said that afterwards he had become cold and had got into his car and that KB had also got into the car, next to him in the passenger’s seat. He said that he told her in broken English that he had come to Australia two days before, that he would go back to Mongolia “after 14 or 20 days”, that he had worked as a teacher and in a construction company and that he was married with children.

83. The applicant said that he had called his brother in Mongolia via the FaceTime Messenger service and that KB had said “Hi” to his brother. The applicant said that he did not recall speaking to Mr Ayush. He said that he took a “selfie” of himself and KB. He said that he showed KB photographs of his family members and that when he showed KB a photograph of his younger daughter, she said, “[s]he’s very beautiful, she looks like you.” He said that they had exchanged phone numbers. He also said that they were sitting close to each other, that she had taken his left hand with her right hand and that he had said to her “[y]ou is right?” (are you ok), to which she responded, “[y]es” and then they both kissed for about 10 seconds and that KB had used her tongue when kissing him. He said that KB had pulled him towards herself and that one of them had reclined the passenger seat. He inferred that she liked him.

84. The applicant said that he touched her breasts and her blouse and she held him underneath his shirt and also held his bottom inside his pants. He kissed her breasts and lifted her blouse. He then removed her trousers and kissed her genital area. She raised her legs. At this time, her eyes were open and she was not drunk. She was cuddling him and not pushing him away. It was the applicant’s impression that “she seemed to like it.” He then penetrated her vagina with his penis. After two or three minutes, it was over. He thought “she really wanted [it] very much.”

85. Afterwards, they both dressed and got out of the car to smoke a cigarette. He denied that she had ever fallen asleep in the car and said that “[t]here was no one sleeping and it was a lively thing between us.” When they were out of the car smoking, they had spoken about meeting the following day to have a meal in a restaurant. He said that he walked her to the door of her apartment building. He said that he had not locked her in the car as he did not have the keys as his brother had the keys. After he had walked her to the door, he returned to the car.

86. He said that he had not told the truth to police about his work with UberEats or what had happened in the car or the period during which he and KB had been in the car because he was “very afraid”, “scared”, “ashamed” and “surprised by the accusation of rape.” He said it was a “false allegation.” He also said that he had spoken to a Mongolian solicitor before he was interviewed and been advised not to say anything about himself. He accepted that the terms of his visa to Australia did not permit him to work. His car did not have an “Uber” sticker and he had never been an Uber taxi driver because his car was too old and he had not been driving in Australia for a period of a year, which was a requirement imposed by Uber.

The applicant’s evidence in cross-examination

87. The applicant denied telling Mr Ayush that there was no record of a conversation between them on 6 or 7 August 2018.

88. The applicant purchased the car in November 2017, when he first came to Australia. He stayed from November 2017 to February 2018. He returned to Australia on 1 April 2018 and left in late May 2018. As mentioned above, he returned on 4 August 2018 and delivered for UberEats on 5 August 2018.

89. The Crown put the improbability of the proposition that KB had agreed to get into his car, except under a misapprehension (that he was an Uber driver) as follows:

“Q. You see, [KB] got into your car, you agree, about two minutes after she approached?

A. INTERPRETER: Yes, probably.

Q. And you'd only said two things to each other, one, ‘Do you have a cigarette?’ ‘Yes.’ That was the first thing that was said?

A. INTERPRETER: Yes.

Q. And the second thing was something like you saying, ‘I live in this building,’ or ‘I live in [XXX] Street, Waterloo.’ That was the second thing that was said, correct?

A. INTERPRETER: I think this happened inside the car.

Q. Is it your evidence that the only thing that was said before you got in the car was, ‘Have you got a cigarette? and [you] said, ‘Yes.’ Is that the only thing that was said?

A. INTERPRETER: Probably, yes.

Q. So, these are the facts. It was a Monday night, correct?

A. INTERPRETER: Yes.

Q. It was about ten to midnight?

A. INTERPRETER: Yes.

Q. You'd never met this woman before …?

A. INTERPRETER: Yes.

Q. She was wearing a coat?

A. INTERPRETER: Yes.

Q. She was clearly much younger than you?

A. INTERPRETER: Maybe, yes.

Q. And two minutes after meeting this woman, she just gets in the passenger seat of your car, is that what happened?

A. INTERPRETER: Yes, probably.

Q. Did you think that was weird?

A. INTERPRETER: I don't know. I was drunk myself and then I - I was cold. I went into my car and she came in.

Q. Well, in all your travels around the world to Russia and China and Korea and Australia, had this ever happened before?

…

INTERPRETER: No.”

90. It was put to the applicant that he had understated to police the time he was with KB in his car (by saying that he was only with her for 20 minutes when the CCTV footage established that it was about 50 minutes). He denied this. He also denied that she was sleepy or drowsy at any time while they were together. He said that she looked normal and was able to walk normally. When he received her text about the purse, he was worried that she would accuse him of theft.

The applicant’s evidence in re-examination

91. The applicant said that a friend, who was not drinking, had driven him to Strathfield and that the applicant had not driven home. He said that he had sent the text message about food to a “younger guy who lives in our second room.”

The Crown closing

92. In closing, the Crown identified the issues for the jury: whether KB consented to each of the two acts of sexual intercourse and what the applicant’s state of mind was as to whether she had consented.

93. As ground 1 concerns the Crown address, it is necessary to extract some passages from the address to highlight the basis of the applicant’s challenge to the verdicts.

94. The Crown submitted that KB was credible and that her evidence was corroborated by the objective facts and contemporaneous documents. The Crown also emphasised the complaint evidence and KB’s state when she returned to the apartment after having been with the applicant.

95. The Crown then turned to the applicant’s credibility and the objective implausibility of his version of events. The emphasised passages in the extract below are those particularly relied on by Ms Kluss, who appeared for the applicant in this Court, in support of ground 1. The Crown said, in closing:

“You are the judges; you are the court of fact. Now, just today, just this afternoon, he denied that [KB] got into the car before him. He told the police that he got in the car first and she got in later. Well, I invite you, ladies and gentlemen, to watch the CCTV footage about six minutes into the footage, this is the long footage, six minutes in, you see the boot of the car open, you see the accused shepherd [KB] towards the passenger door of that car.

His arm comes into contact with her. I invite you to have a look at that footage.

Why is that important? Because it's a very inconvenient piece of evidence for the accused[.] There's no rational reason why [KB] would be getting in the car of someone who's a complete stranger on a Monday night at 10 to midnight, after meeting him two minutes ago, when they don't speak the same language. And it's that inconvenient piece of evidence that might just provide a little opening as to the state of mind of the accused. You might think, by that time, he knew that [KB] was not normal - was not 100% sober. He was shepherding her into the car. Even on his own account, he didn’t have car keys. The 20 to 30 minute issue in the car, you might think that that's another piece of inconvenient evidence for the accused. Because there's unaccounted-for time on his chronology of events.

50 minutes, or 54 minutes, is a very long time to be sitting next to someone where you don't really speak the same language. It's a long time. I'm not going to stand here and demonstrate. If I stood here in silence for two minutes, it would take a long, long, long time for that time to pass. Sit in the jury room for 54 minutes, in silence. The Crown says you would reject his evidence. That his evidence about what happened in the car is far-fetched. It beggars belief. The Crown says that he's glossed over some of the inconvenient parts of the case, in his interview and in his evidence here, particularly how and why [KB] got in the car. There's this Google Translate evidence. There's no evidence of those conversations, but we don't know what was being translated. There's no evidence that he asked [KB] if she wanted to have sex, or if she wanted him to perform cunnilingus.

You have the evidence also - it's a crown witness - Mr Ayush, the childhood friend of the accused. Well, you might think he was just evasive. We know that he gave a statement to police. You might think that he tried to step away from that statement. And you might think that the fact that the phone records didn't corroborate or confirm his statement may be a relevant factor. You have the evidence of the brother of the accused. It's a matter for you, but he's the brother of the accused. You might think that he's not an impartial witness. It's a matter for you. We have the DNA evidence. It's evidence that the accused ejaculated inside [KB]'s vagina. You might think that the fact that the accused did not wear a condom is a relevant consideration in relation to the issue of whether or not [KB] consented.

Remember, that's the first issue in the case: did [KB] actually consent? Was she wanting this sexual intercourse? Well, she's 23, he's 40. They've never met each other. There's no condom. You might think that that piece of evidence is something that would be suggestive that she wasn’t consenting. The version of the accused was that [KB] was some sort of equal participant in - and he used the word ‘lively’ yesterday - that this was a lively encounter. It's completely implausible. Completely implausible. She's 23 years old. She lives with her boyfriend. She's overdosed on alcohol and valium. She's trying to go to hospital. She books an Uber to go to hospital - genuinely booked an Uber, because she got charged $10 for the cancellation.

And the version of the accused is that she just jumps into his car, has unprotected sex involving cunnilingus, ejaculation inside her vagina, all in the front seat - not the back seat. And you might think there's something in that. You might think that the fact that they have sex in the front seat is consistent with [KB] being drowsy. And all of this took place within 45 minutes of the two of them meeting. It's fundamentally implausible. Fundamentally implausible. And it's fundamentally implausible because it's not true. And you can't fudge that. There was no evidence of [KB] having any sexual appetite. You've seen her on the CCTV footage. This isn't one of these cases from California, in that study where people are given alcohol and then have sex, consensually, and forget about it.

She's not drinking alcohol at a party, or in a bar, on a tropical island, looking for some sort of romance. That's not the context. She didn't consent. You'd be satisfied of that beyond reasonable doubt. You then move to the next element, which is the state of mind of the accused. Now, in my opening, I talked about the three pathways to prove that the accused knew that she wasn't consenting. Actual knowledge, recklessness, and the accused had no reasonable grounds to believe that she was consenting. You can navigate to a guilty state of mind using those three pathways as alternatives. And as a jury, you don't have to agree on the same pathway. You just have to agree that he had a guilty state of mind.

…”

[Emphasis added.]

Matters raised on behalf of the applicant regarding the Crown address

96. Before the defence closing, trial counsel for the applicant, Ms Phelps, raised three matters regarding the Crown closing, of which only the third is of present relevance:

1. s 293A of the Criminal Procedure Act 1986 (NSW);

2. the complaint evidence; and

3. “the reliance by the Crown on perceived social mores and morals”.

97. As to (3), the applicant’s trial counsel argued that the Crown had breached the standards of fairness imposed on prosecutors. Ms Phelps referred to the Crown’s submission as to the improbability of KB having unprotected sex, including cunnilingus with an older stranger in a car. She also relied on the Crown’s reference to KB’s alleged lack of “sexual appetite” and her not being at a bar on a tropical island, looking for romance.

98. The trial judge dismissed what his Honour apprehended was an application to discharge the jury. Trial counsel for the applicant confirmed that she had been instructed not to apply for a discharge. His Honour said:

“My understanding of what the Crown was saying as regards each of the matters that you raised - and I don't pretend that I am about to cover every point you raised, was as follows. That when reference was made by the Crown to unprotected sex and the differences in age between the complainant and the accused, he was making the submission that that was a circumstance they could take into account as regards to the issue of whether she had consented or not.

As to the reference to disgusting, that was, again, a reference to her state of mind at the time of the sexual activity, being a circumstance the jury could take into account when determining whether she had consented or not. As regards

his reference to sexual appetite, again, that was a reference, as I understood it, to a circumstance of going to her state of mind that she did not consent. Having made those observations, and you not having asked for a discharge of the jury on instructions, is there any direction that you would want me to give, and also, again, you can have time to draft that and we can consider that.”

The defence closing

99. The applicant’s trial counsel referred to KB’s habitual drinking and the previous incident with police, which she could not recall because of “memory blanks.” Ms Phelps continued:

“She had memory blanks. And, of course, she was a habitual drinker. She had ended up in hospital before because of her drinking. So it was this shame that she was feeling on the night of 6 August that she said led her to consume the bottle of wine. The shame of not knowing what she had done. Of course, I'm suggesting to you that that's a comparable situation where she has consumed substances, gone out, and got memory blanks.

It's not entirely comparable because that conduct did not involve sex with a stranger. Going back to what she told you about what she was thinking and what she was feeling on 6 August. She gave evidence that she believes her memory is she had the intention of harming herself that night. She said, on this occasion, she was feeling suicidal. You might think that going out and perhaps recklessly having unprotected sex with a stranger falls into the category of self harm.

Just in relation to the fact that the sex was unprotected. I note that the Crown has placed some significance on the absence of a condom as being indicative of absence of consent. But as you've already been instructed by the judge and reminded by the Crown, you bring with you to your tasks your experience of the world, and you know that people do throw caution to the wind. People do have unprotected sex with people with whom they are not well acquainted.”

100. Ms Phelps referred to “sexual appetite” in the following passage from her closing address:

“That purse ended up being back at her home. It may have even been at her home when she stepped out of the unit block before midnight. I raise this, in my submission, it supports a conclusion she was also wrong about the rape allegation. The Crown spoke to you in his address about sexual appetite. He said that she wasn't at a party in a bar on a tropical island looking for romance. He said that there's no evidence of [KB] having any sexual appetite, and he referred to the CCTV footage.

Just so you don't go down the wrong path, there's no obligation on Mr Zurshig to prove [KB] had a sexual appetite at all. And you, as people of the world, know that people have spontaneous sex. To say that spontaneous casual sex is extraordinarily unusual is not only probably statistically wrong but not at all relevant. What you need to concern yourself with is not social norms. So there's no onus on Mr Zurshig to prove some pre-existing sexual desire.”

Matters raised by the applicant’s trial counsel during summing up

101. The trial judge commenced the summing up on 19 December 2019. During the luncheon adjournment, in the absence of the jury, his Honour asked Ms Phelps if she had draft directions which she wanted him to give. Ms Phelps responded:

“Yes, I’m not sure that I will, your Honour, ask for it [a direction]. I don’t know if I’m going to ask for any directions, having thought about it. I addressed the third of my concerns about the sexual appetite in my address, and I think the second of my concerns is best left unhighlighted. I addressed briefly social mores and my first concern is the s 293A [of the Criminal Procedure Act] direction.”

102. In light of the list of matters raised by Ms Phelps in the course of the summing up, the trial judge was entitled to be satisfied (as I am) that Ms Phelps regarded the third matter ((3) in the list above), which concerned social mores, as having been satisfactorily dealt with in her closing.

103. I note that the Crown did not rely on any of the applicant’s statements, which it contended were false, as lies which amounted to a consciousness of guilt. There is no challenge to his Honour’s directions regarding this, or any other, matter.

The verdicts

104. The jury retired to consider its verdicts at 3.46pm on Thursday 19 December 2019 and were released for the day at 4.19pm. At 2.32pm on Friday 20 December 2019, the jury returned verdicts of guilty on both counts.

The grounds of appeal

Ground 1: alleged miscarriage arising from the Crown’s address

105. Ms Kluss contended that the effect of the Crown’s submissions that the applicant’s version was objectively improbable, was to denigrate the applicant and to improperly influence the jury by casting racist aspersions on him and invoking discriminatory propositions. She submitted that the prosecutor communicated “in almost an inferred code” that KB would never have consented to sexual intercourse with the applicant because he was “a middle-aged Mongolian man”.

106. Ms Kluss made the following specific complaints:

1. the reference to KB’s lack of “sexual appetite” was irrelevant and not a matter of evidence;

2. the prosecutor’s reference to “one of those cases in California where people are given alcohol and then have sex essentially and forget about it” unfairly undermined the applicant’s case;

3. the prosecutor’s submission that the applicant’s version was fundamentally implausible depended on “perceived social mores and morals” about having unprotected sex, including cunnilingus with an older stranger in a car; and

4. that there was a “racial undertone” to the Crown’s closing.

107. This Court summarised the principles which govern the constraints on the Crown in closing address in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31] (McClellan CJ at CL, Johnson and Latham JJ). Censure was warranted if the Crown did any of the following: made a submission to the jury which was not based on the evidence; used intemperate or inflammatory comments tending to arouse prejudice or emotion; made comments which belittled or ridiculed the accused’s case; impugned the credit of a Crown witness if leave had not been sought to cross-examine such a witness to permit the witness to respond; or conveyed the Crown’s personal opinions.

108. Although the Crown is prohibited from engaging in any of the conduct referred to above, the Crown is neither “prohibited from forcefully and firmly putting the prosecution case to the jury” nor “firmly calling upon the jury to reject defence evidence or a defence case as inherently unbelievable”: Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [269] (Beazley P, Schmidt and Button JJ). In FX v R; GX v R [2020] NSWCCA 189, this Court held that it was open to the Crown in its closing in that case to describe the accused’s evidence as “simply ludicrous”, “border[ing] on the absolute ridiculous” and “defying belief”: at [344], [347]-[348] (Johnson J, Price and Davies JJ agreeing).

109. Objective probability (and its converse “glaring improbability”) is a useful guide to fact-finding as well as credibility: Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 (Lord Pearce, Lord Wilberforce agreeing). In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] Gleeson CJ, Gummow and Kirby JJ referred to the practice of judges (in their capacity as triers of fact, usually in civil proceedings) of “reason[ing] to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events” (emphasis added).

110. It is evident from a review of the relevant authorities that a prosecutor is entitled to use plain language, and that the use of the vernacular is also acceptable. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Heydon J said at [125], that comments, including disparaging ones, concerning the evidence, or lack of it, can appropriately be made by the Crown in final address.

111. For example, in Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321, the appellant argued that the prosecutor’s use of the words “come on” in closing address to indicate that the accused’s version was not credible gave rise to a miscarriage of justice. This Court (Bathurst CJ, Simpson J and myself), which dismissed the appeal against conviction, said:

“116   … In our view, the duties of a prosecutor are not inconsistent with the use of rhetoric. In a circumstantial case where the Crown must exclude all reasonable hypotheses consistent with innocence, a prosecutor may, in the course of final address, be obliged in the course of forceful presentation of the Crown case to disparage versions given by the accused on the grounds that they do not fit with the surrounding facts and circumstances or are, for other reasons, not to be accepted. Less formal language, including vernacular phrases, may appropriately be used to persuade the jury to exclude those hypotheses consistent with innocence. The responsibilities of the prosecutor do not preclude resort to colourful language as a tool of persuasion.

117    We do not consider the prosecutor to have overstepped the bounds of his role when he used the phrase, ‘Come on’, to persuade the jury that the appellant's explanation was manifestly implausible.”

112. In the present case, the issues of whether KB consented and the applicant’s state of mind regarding KB’s consent turned not only on KB’s evidence (that she did not and would not have consented) and the applicant’s evidence (that she initiated sexual contact by holding his hand and kissing him with her tongue and hugging him under his shirt, and that he specifically asked for and obtained her affirmative consent to sexual intercourse), but also on the “apparent logic of events.” A tribunal of fact, when considering the apparent logic of events, asks itself whether, if a, b, and c are accepted, it is likely that d also happened, by reference to usual human experience.

113. In closing, both parties called in aid the apparent logic of events to support their respective cases. The Crown submitted that the jury would not accept that a woman who had been suicidal and was so worried about having overdosed as to call an Uber to take her to hospital would consent to, much less initiate, sexual intercourse (cunnilingus and unprotected penile-vaginal sex) with an older man who did not speak English whose car she had entered, believing, mistakenly, that he was the Uber driver who was going to take her to hospital.

114. The applicant’s trial counsel submitted that unprotected sex with an unknown older man was the kind of activity which a person such as KB who was engaging in self-harming behaviour (overdosing) might resort to and that, accordingly, the jury ought accept the applicant’s version or, at least, not be satisfied beyond reasonable doubt that KB did not consent.

115. The adversarial system of litigation applies in criminal as well as civil trials. Although there are constraints on prosecutors, including those enumerated above, and a general duty to assist the trial judge to ensure that the trial of an accused person is fair, the duty of the prosecutor is to put the Crown case to the jury, as forcefully as appropriate.

116. I do not accept Ms Kluss’ submission that the reference to the applicant being Mongolian was a racist slur. The applicant’s nationality, Mongolian, was relevant to explain his limited English, thereby making it improbable that he and KB would have engaged in any meaningful discussion in the 50 minutes they spent together in his car. The jury was aware that, throughout the trial, the applicant had had the assistance of Mongolian interpreters and that on more than one occasion, the trial had been adjourned to ensure that such assistance was available to the applicant. Further, the jury had seen the applicant give his evidence through an interpreter.

117. The Crown emphasised the fact that the applicant was significantly older than KB, presumably (although this was not stated) since it made it less likely that KB would be attracted to him (and therefore less likely that his version of her having initiated physical contact was true). These were matters which were relevant to the objective probability of her having consented to intercourse.

118. Whether or not KB had a sexual appetite was also relevant to the objective probabilities of her having initiated physical contact, as alleged by the applicant.

119. The prosecutor’s reference in the closing address to the experiment in California was a direct reference to Ms Phelps’ cross-examination of Mr Farrar in which she had asked Mr Farrar about experiments conducted on university students in California who had drunk to excess and then had sexual intercourse (which would appear to have been presumed to be consensual) which they did not remember. As the prosecutor does not have a right of reply after defence closing, it was not inappropriate for the Crown to anticipate a defence submission relying on those studies.

120. I am not persuaded that the Crown’s closing was in any way inappropriate. Further, it was open to the applicant’s trial counsel to deal with the submission that she had identified as being of concern either by asking for a direction, by applying for a discharge (which the trial judge indicated he would have refused, in my view, correctly), or by making submissions about it. The applicant’s trial counsel chose the third course and used the Crown’s submission in her own closing to contend that this was precisely the sort of conduct (unprotected sex with an older stranger) one would expect of someone who was engaging in self-harm. This submission had the potential to denigrate the applicant but there is no limit on the submissions which may be made on behalf of an accused person which corresponds with the limitations which apply to the Crown, which have been summarised above.

121. Although the Crown did not submit that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was required for ground 1, I consider that it is necessary. The applicant’s trial counsel did not apply for a discharge of the jury. The applicant is, accordingly, bound by this choice: R v Birks (1990) 19 NSWLR 677. It appears that Ms Phelps decided to exploit the Crown's submission and use it for the applicant’s forensic advantage to persuade the jury that the improbability of such intercourse being consensual was consistent with KB’s propensity to self-harm. It is not for this Court to enquire as to the reasons for trial counsel preferring this course to an application for discharge. In my view, Ms Phelps’ decision is capable of rational explanation on the basis of a perceived forensic advantage to the applicant: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [27] (Gaudron J). On that basis, I would conclude that no unfairness attended the process: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9] (Gleeson CJ). As the Crown did not submit that r 4.15 applied, I have, as my reasons set out above indicate, addressed the ground in full although I would not, if the Crown had submitted that leave under r 4.15 applied, have been disposed to grant leave under r 4.15.

122. Ground 1 has not been made out.

Ground 2: alleged unreasonable verdict

123. Where a verdict is sought to be challenged on the ground of unreasonableness, this Court is obliged to make its own assessment of all of the evidence to determine whether it was open to the jury to be satisfied of the applicant’s guilt of the two counts beyond reasonable doubt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In M v The Queen at 493, the High Court (Mason CJ, Deane, Dawson and Toohey JJ) said, in answering this 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.”

[Footnotes omitted.]

124. In the above narrative I have endeavoured to summarise the significant evidence which was before the jury, all of which must be considered in a consideration of ground 2.

125. Having read the transcript and exhibits and viewed the CCTV footage, I am satisfied that it was open to the jury to be satisfied of the applicant’s guilt on both counts.

126. It was open to the jury to reject the applicant’s evidence on the basis that, when first interviewed by police, he had given a false account in that he had denied that there was any intimacy between KB and himself. The jury had been directed that they could not use any false statements made by the applicant as amounting to a consciousness of guilt. This Court is entitled to assume that the jury complied with this direction: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [16] (Gleeson CJ and Gummow J).

127. Although KB’s evidence reflected the gaps in her memory, her contemporaneous complaints to Joshua, the staff at St Vincent’s and RPA, as well as to her sister in Scotland, corroborated her evidence that she did not consent to sexual intercourse with the applicant.

128. The Crown case on the issue of consent was based, not only on KB’s evidence and the complaint evidence, but also on observations made by third parties (including professionals at the two hospitals) of her state of distress and intoxication in the aftermath of the alleged offences; expert evidence as to the effects of alcohol and Valium; and the CCTV footage (which depicted her gait and movements).

129. Further, it was open to the jury to consider that the objective probabilities favoured the Crown case and that KB had only entered the applicant’s car because she believed it was the Uber which she had ordered to take her to hospital. It was also open to the jury to infer from the passage of time during which KB was in the car that she had fallen asleep and been woken when the applicant was performing cunnilingus on her. The inherent improbability of KB consenting, which was the subject of the passage from the Crown address referred to in ground 1, was also a matter which the jury could take into account.

130. The jury might have considered that, because of KB’s state of intoxication and her fear that the applicant might harm or even kill her (a fear which KB expressed to her sister within a few hours of the alleged offences), she had kept relatively calm while she was in the applicant’s company after the alleged offences in order to ensure that she could reach safety. The jury might have reasoned that she felt able to express her true emotions as soon as she was within the apartment, when she was found by Joshua, distraught, curled up into a ball and sobbing.

131. It was open to the jury to infer that the applicant could not possibly have believed that she consented to the intercourse in circumstances where she was obviously intoxicated, did not know him and could not speak the same language, in circumstances where it was likely that she only got into his car because she was mistaken (that he was the Uber driver and could take her to the hospital).

132. Ms Kluss also placed weight on the fact that KB initially told Joshua that she thought that she had been raped. It was open to the jury to regard the tentative nature of this statement as a reflection of her state of intoxication and distress at the time, and, possibly, her desire to believe that what she knew had happened had not, in fact, happened. When she messaged her sister and reported the matter to the hospital staff, there was no equivocation. All of these matters were matters for the jury. I am not persuaded that there is any basis for inferring that the jury misused its advantage in seeing and hearing the evidence at the trial.

133. For the reasons given above, ground 2 has not been made out.

Proposed orders

134. For the reasons given above, I propose the following orders:

1. Grant the applicant leave to appeal against his conviction.

2. Dismiss the appeal.

135. WRIGHT J: I have had the benefit of reading the judgments of Basten JA and Adamson J in draft. I agree that leave to appeal should be granted in relation to both grounds of appeal but the appeal should be dismissed as proposed by Adamson J.

136. As to ground 1, I agree with the reasons given by Adamson J and the additional observations by Basten JA.

135. In relation to ground 2, I made my own independent assessment of the evidence as a whole and considered the sufficiency, quality and nature of the evidence. I also agree with the analysis of Adamson J. Giving due weight to the advantages of the jury in seeing and hearing the oral evidence being given and the atmosphere of the trial, I did not entertain a reasonable doubt as to the applicant’s guilt nor was I satisfied that the jury must have had a reasonable doubt. In these circumstances, I agree that this ground of appeal should be rejected.

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Endnote

Decision last updated: 16 December 2021