Prasad v The King
[2025] NZHC 86
•4 February 2025
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS(ES)
PURSUANT TO S 202(1) OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-530
[2025] NZHC 86
BETWEEN PRANEEL VISHAL PRASAD
Appellant
AND
THE KING
Respondent
Hearing: 4 February 2025 Counsel:
S Kumar for Appellant
H Clark and B So for Respondent
Judgment:
4 February 2025
(ORAL) JUDGMENT OF WILKINSON-SMITH J
[Appeal against conviction]
Solicitors/Counsel:
Sanjay Barristers & Solicitors, Auckland Crown Law, Wellington
PRASAD v R [2025] NZHC 86 [4 February 2025]
Table of Contents Para No
Introduction[1]
Preliminary issue[7]
Background[17]
Approach on appeal against conviction [22]
The District Court decision[27]
Discussion[56]
Conclusion[85]
Introduction
[1] Following a judge-alone trial before Judge K Maxwell in the Auckland District Court, which ended on 20 May 2024, Mr Prasad was convicted of one charge of sexual violation by unlawful sexual connection (anal penetration).1 He was acquitted of a second charge of sexual violation by unlawful sexual connections (oral/genital contact). He has not yet been sentenced.
[2] Mr Prasad appeals against his conviction on the basis that the Judge erred in her assessment of the evidence in various ways and in refusing a defence application at trial for an adjournment to enable the Institute of Environment Science and Research (ESR) to undertake a comparison of a DNA sample obtained from the complainant.
1 R v Prasad [2024] NZDC 16998.
[3] In a related judgment, I declined Mr Prasad’s application for an order that the DNA sample be tested in advance of the appeal hearing.
[4] Mr Prasad also sought an adjournment of the appeal hearing on the grounds that he wished to obtain medical evidence for the purpose of the appeal. That application was declined by Johnstone J on 16 January 2025.2
[5] Mr Kumar sought to adjourn this appeal again this morning, but an adjournment having already been declined by Johnstone J recently, I declined any further adjournment. Mr Kumar asked to withdraw the appeal but in my view that is an attempt to achieve an adjournment by different means. The appeal can be dismissed for want of prosecution or it can proceed.
[6] I am concerned at the delays. Mr Prasad was convicted of sexual violation by unlawful sexual connection. He was granted bail pending sentencing and remains on bail. An appeal was then filed against conviction before the sentencing hearing and the sentencing delayed to await the outcome of the appeal.
Preliminary issue
[7] As a preliminary issue, I note that it is unusual for an appeal against conviction to be filed in advance of sentencing. There is an issue as to whether an appellant can or should bring an appeal against conviction in the High Court before a sentence is imposed in respect of the conviction to which the appeal relates.
[8] The relevant legislative provision is s 231 of the Criminal Procedure Act 2011, which provides:
231 How to commence first appeal
(1)A convicted person commences a first appeal under this subpart by filing in the first appeal court—
(a)a notice of appeal, if the court appealed to is the District Court, High Court, or Court of Appeal; or
…
2 Prasad v R HC Auckland CRI-2024-404-530, 16 January 2025 (Minute of Johnstone J).
(2)A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.
…
(emphasis added)
[9] Section 231 replaced s 115 of the Summary Proceedings Act. This provision provided:
115 Defendant’s general right of appeal to High Court
(1)Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—
(a)Convicts any defendant; or
…
(2)In the case of a conviction, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only …
…
(3)No appeal against conviction shall be brought until the person convicted has been sentenced or otherwise dealt with.
…
[10] That provision provided that an appeal could only be filed after sentencing. The wording of the current s 231 suggests that such an appeal will only be heard after an appellant is sentenced. However, unlike the repealed s 115(3) of the Summary Proceedings Act, there is no express prohibition against an appellant bringing a conviction appeal prior to sentencing, such that “it is open to an appeal court, in an exceptional case, to hear an appeal against conviction prior to the imposition of sentence”,3 as was said in Gurney v Police.
[11]In that case, Collins J stated:4
While it is highly unusual for an appeal against conviction to be heard prior to any sentence being imposed, s 231 of the Criminal Procedure Act 2011 does
3 Mathew Downs (ed) Adams on Criminal Law — Criminal Procedure (online ed, Thomson Reuters) at [CPA231.02] (footnotes omitted).
4 Gurney v Police [2017] NZHC 1581 at [11].
not expressly require sentencing to take place prior to consideration of an appeal.5
[12] Similarly, in Mathers v Police, after setting out the text of s 231, Lang J made the following remarks:6
[8] The section plainly contemplates that sentencing will take place before a notice of appeal against conviction is filed. There is, however, no express provision requiring sentencing to take place before the appeal against conviction may be filed. This is to be contrasted with the section that s 231 replaced, s 115(3) of the Summary Proceedings Act 1957 …
[9] I consider the change in wording was deliberate. Parliament obviously intended that most appeals against conviction should be heard after the appellant had been sentenced. This removes the risk that the first appeal court will be required to hear two appeals, one against conviction and one against sentence. Parliament recognised, however, that there may be cases in which it is appropriate for an appeal against conviction to be heard before the appellant has been sentenced. Those cases are likely to be the exception rather than the rule.
[13] In Gurney v Police, Mr Gurney sought to appeal to the High Court against a conviction for driving with excess breath alcohol before he was sentenced in the District Court. While the alleged offence was committed in 2002, Mr Gurney was only convicted in 2017. Collins J proceeded to hear the appeal prior to sentencing, and determined that the District Court Judge who had entered the conviction had erred in failing to recognise that under s 10B of the Crimes Act 1961 (now repealed), the prosecution case against Mr Gurney could not proceed in the District Court more than 10 years after the alleged offending without the consent of the Attorney-General, which had not been obtained.
[14] In Mathers v Police, Lang J referred to Gurney as “a good illustration of when it will be appropriate to determine an appeal against conviction before the appellant has been sentenced”,7 saying:8
The delay between 2002 and 2017 meant that the prosecution in the District Court could not continue without the prior consent of the Attorney-General. It was common ground that the Attorney-General had not given his consent to the continuation of the prosecution. It followed that the District Court had no
5 Cf s 115(3) of the Summary Proceedings Act 1957. This provision was not carried forward into the Criminal Procedure Act 2011.
6 Mathers v Police [2018] NZHC 1407.
7 Mathers v Police, above n 6, at [10].
8 At [11] (footnotes omitted).
jurisdiction to hear the charge, and equally had no jurisdiction to impose sentence. In those circumstances it would obviously have been pointless, and wrong in principle, to require the appellant to be sentenced before the appeal against conviction was heard.
[15] The present case is not one of those exceptional cases. In the usual course of events this appeal should have followed the sentencing hearing. Certainly, the sentencing should not have been delayed until after the hearing of the appeal against conviction. In the circumstances of this case however where submissions have been filed and an adjournment of the appeal has been declined there seems little utility in declining to hear the appeal. This should not be taken as authority justifying conviction appeals being heard prior to sentencing in the usual course of events. Generally, conviction appeals should not be filed prior to sentencing and, if they are filed prior to sentencing, should be adjourned to be heard following sentencing and in conjunction with any appeal against sentence unless there are exceptional circumstances of the sort in Gurney and Mathers.
[16] In this case however the sentencing has been delayed and the complainant and defendant are no doubt both anxious about the outcome of this appeal. I do not want to add to the delay.
Background
[17]I turn to the appeal itself.
[18] The appellant is a male in his forties. The complainant, Ms X, is a female in her twenties who worked as an escort at a club in Auckland. Mr Prasad and Ms X were known to each other as Mr Prasad was a previous client of Ms X at the club.
[19] On Saturday 30 January 2021, Ms X was working at the club. Mr Prasad arrived at about 11 pm. He spent a short time at the bar and eventually booked Ms X for what is described as a “girlfriend experience”, paying $340. There is no dispute that Mr Prasad performed consensual oral sex on Ms X. Ms X says that he subsequently penetrated her anus with his penis without her consent. Ms X also says that after the anal intercourse, Mr Prasad approached her and attempted to put his penis
in her mouth. Ms X did perform oral sex on Mr Prasad. She says that at times she was crying while she did so.
[20] It is not disputed that during the booking Ms X pushed a button on an intercom and told her manager that the booking was not continuing. Ms X made an immediate complaint to the manager and Mr Prasad was escorted off the premises of the club. He was asked to pay a further $200 fee, which he did, and which was later provided to Ms X in cash. The normal process at the club is for a client to pay a booking fee for the room and a $160 payment, referred to as a “tip” to the escort booked. The cash tip is normally collected by the escort from the client at the beginning of the booking prior to any services provided.
[21] Mr Prasad told police that he had booked Ms X’s services but had been unable to maintain an erection. He said that he and Ms X had mutually touched each other, and he then passed out after Ms X massaged him and when he woke up Ms X was upset for reasons unknown to him.
Approach on appeal against conviction
[22] An appeal against conviction is governed by s 232(2)(b) and (c) of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that:
(a)the trial judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[23] A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that:9
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
9 Criminal Procedure Act 2011, s 232(4).
[24] The appeal is by way of rehearing.10 The appellate court must form its own view of the evidence.11 In doing so, the appellate court must recognise any advantages enjoyed by the trial judge in assessing evidence and must exercise “customary caution” where the challenge is to credibility findings based on contested oral evidence.12 If the appellate court comes to a different view of the evidence to the trial judge, that is necessarily indicative of error, and the appeal must be allowed.13 It is for the appellant to show that the judge erred, either by pointing to an error in the assessment of the evidence, or by pointing to a miscarriage which occurred for some other reason.14
[25] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without the error the appellant would have secured a more favourable result, or because the error made the trial unfair.15
[26] Further, not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.16 What is required is a fair trial not a perfect trial.17
The District Court decision
[27] The hearing in the District Court took place over four days and the Judge heard from a number of witnesses including the complainant, Ms X, and the appellant, Mr Prasad.
[28] The Judge began the decision by setting out the relevant portions of the Crimes Act 1961 and the elements of the charges. The Judge said that the issues at
10 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
11 Austin, Nichols & Co Inc v Stiching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
12 Sena v Police, above n 10, at [38], citing Austin, Nichols & Co Inc v Stiching Lodestar, above n 11, at [13].
13 Sena v Police, above n 10, at [38].
14 At [38].
15 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
16 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
17 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58], citing R v Find [2001] 1 SCR 863 at [28].
trial distilled into a single question, namely whether the Crown had proven beyond reasonable doubt that the act in question occurred in respect of each charge. The issue of consent was not expressly raised by the appellant. It was never put to Ms X that she had consented, and Mr Prasad did not give evidence as to consent. The Judge correctly directed herself that nevertheless consent remained an issue which must be canvassed and noted that it had particular application in respect of Charge 2, the charge of oral sexual violation.
[29] The Judge then set out the general principles, directing herself to put aside feelings of prejudice or sympathy and reminding herself that demeanour is not, by itself, a good way to assess whether evidence is true or false. The Judge correctly directed herself on the issue of separate charges, corroboration, recent complaint, prior inconsistent statements, circumstantial evidence, inferences, inadmissible evidence and the burden and standard of proof. The Judge directed herself correctly that the fact Mr Prasad had given evidence did not change who must prove the charges. The Judge reminded herself that Mr Prasad did not have to establish his innocence and said the question remained whether the Crown had proven guilt beyond reasonable doubt.
[30] The Judge then set out a brief overview of the case and the witnesses that were called for the Crown, namely Ms X, three employees of the Club, a doctor, an ESR scientist, and police officers involved in the investigation.
[31] The Judge then summarised the evidential recorded interview of Ms X which formed the basis of her evidence in chief. The Judge set out the recent complaint evidence, namely that Ms X told her manager that Mr Prasad had “fucked me up the ass without a condom”. The Judge set out Ms X’s evidence about payment. Ms X said that the club could be tricky and would take away tips if there was an issue in the room. Ms X described the option of leaving the room as very much a last resort because of the financial consequences for the escort. The Judge said that Ms X acknowledged that Mr Prasad did not have much of an erection. Ms X agreed that there was foreplay and said that Mr Prasad complained about condoms affecting his erection. Ms X agreed that Mr Prasad could have penetrated her “a lot worse” if his function was “decent’ but maintained that he did penetrate her.
[32] The Judge recorded that in essence the defence case was there was no anal penetration and there was no penile/oral connection. It was put to Ms X that the evidence about that was fabricated. Ms X did not agree. Ms X acknowledged that her memory after she left the room was not particularly clear. She described telling one of the managers what Mr Prasad had done to her and that manager subsequently confronted Mr Prasad in the hallway. The Judge referred to CCTV footage which showed Ms X in the kitchen where she first went after she left the room and said it is apparent from the CCTV footage that Ms X was visibly distressed. Anticipated evidence from a defence witness was put to Ms X, including that she had told the defence witness that she could not remember whether Mr Prasad had penetrated her. Ms X denied that. The Judge said that Ms X agreed that she did have a conversation with the witness after the events about how much money it would take for Mr Prasad to “settle the matter”. Ms X confirmed that she did have that conversation and said that she stands by it. She described some type of financial settlement as looking more like justice to her. The Judge set out that it was put to Ms X that the act of anal penetration she described was physically impossible. Ms X did not accept that.
[33] The Judge then referred to the evidence of the Crown witnesses, including two managers, both of whom described Ms X as very distressed after the incident. One of them described Ms X curled up in the foetal position and the other described her sobbing. One of the managers confirmed that Ms X told her that her client had ripped his condom off and had put his penis in her “bum”. The manager gave evidence that Mr Prasad was confronted about what had gone on in the room and he responded, “No, it’s all good, everything was fine, I was allowed to”. The manager replied “no” and that Ms X would not have done that. It was put to the manager that Mr Prasad had never said that he was “allowed to do it”. The manager replied that that is what he had told her. The general manager of the club gave evidence and described a phone call with Ms X during which Ms X was extremely distressed and upset that there had been no contact from the club.
[34] The Judge then traversed the evidence of Dr Christine Foley who conducted a medical examination of Ms X. Ms X told Dr Foley that she was engaging in consenting sexual conduct and that had changed to sustaining or experiencing anal penetration by penis and possibly digital or finger penetration, but Ms X was not
certain about that. The essential allegation was of penile/anal contact, possible digital/anal contact, and genital/oral contact. As regards to the genital/oral contact, Ms X said it “went both ways”. Dr Foley detailed her examination of the anogenital area and described an acute finding on the area of perianal skin which she described as where the outside skin transitions to the inside area of the anal canal. Dr Foley observed a split in the skin measuring about 4 mm in length, “a relatively small finding, but a definite finding of a split in the skin”. The Judge recorded Dr Foley’s description of the finding as non-specific, meaning that there can be a number of causes. It was not an anal fissure and Dr Foley’s opinion was that it was more likely to represent an injury to the area. The Judge noted Dr Foley’s evidence that it was not possible to differentiate whether it was a laceration, which is a split of the skin due to being stretched beyond its elastic potential, or a scratch from a sharp object. Dr Foley agreed in cross-examination that the split could have been caused by a long fingernail and acknowledged that such an injury could occur in both a consenting and non-consenting situation. She also accepted that the findings could have been caused by something other than sexual assault.
[35] The Judge set out the evidence of police witnesses, before turning to the evidence of the forensic scientist Donna Foskin. Ms Foskin confirmed that she obtained reference DNA samples from both Ms X and Mr Prasad. She also analysed samples taken from Ms X, including anal swabs which were tested using the Y-STR test. Two replicated Y-STR results were obtained. Ms Foskin said that as only two results were obtained, the sample was deemed not suitable for comparison. A full Y-STR profile is on 27 sites of the Y chromosome, so a full profile would be 27 results. In a situation where only two out of a possible 27 were obtained, this was not suitable for meaningful comparison because a lot of males in the New Zealand population would be likely to have those two results. No comparison was undertaken. Ms Foskin confirmed that there was male DNA present on the anal swab and that Y-STR results indicated that male DNA was present.
[36] The perianal swab was also tested for Y-STR and two unreplicated Y-STR results were obtained. As they were unreplicated, they were also deemed not suitable for comparison. As regards to the final rectal swab, no Y-STR results were obtained. Ms Foskin confirmed that it is possible for contact to occur between two people and/or
a person and an item, and DNA not be detected. There are many factors that affect the transfer of DNA including where ejaculation has not occurred or where there has been the use of a condom. A major factor in this specific case according to the witness was the delay between the event occurring and the medical examination.
[37] The Judge recorded that under cross-examination Ms Foskin was asked a number of questions as regarding the results of the anal swab. It was put to her that if Mr Prasad’s reference sample showed that he did not have the two sites in the swab he would be excluded. Ms Foskin agreed with that but said it was not their process to test when only two sites were obtained. She said the danger in adopting that approach was that if Mr Prasad did have the two sites that would become an unmeaningful comparison. Ms Foskin was asked about the nature of an anal swab, which she confirmed to be an exterior anal swab. She asked whether it was possible for DNA from the vagina to drain out and go into other areas. Ms Foskin confirmed that DNA can transfer from the outside. She also confirmed that the results of the anal swab cannot prove penetration. The results from the vaginal swab indicated that there might have been more than one male present, but the results were not suitable for comparison. The Judge noted Ms Foskin’s evidence that semen from the vagina could seep into the anal area. The Judge said that under re-examination Ms Foskin was asked about the possibility of undertaking testing to exclude Mr Prasad from being the contributor to the DNA found on the anal swab. Ms Foskin agreed that even if Mr Prasad had been excluded, that would not establish that no contact had occurred.
[38] The Judge referred to Mr Prasad’s DVD interview which took place on 2 June 2021. Mr Prasad confirmed that on the date in question he went to the club, he said he paid for sex and that is what he went there for. Mr Prasad said that he and Ms X went into the room, the agreement was for normal sexual activity, and he said that he was having an issue with his erection. He said that Ms X charged him an extra
$200 for oral, which he did not get. He said that Ms X was going to give him oral sex so that he could get a “hard on”. She agreed to it, but he thought that is “when she didn’t wanna do it or something” he said, “but I’ve never forced her for anything”. He said that Ms X just walked out of the room “all upset”. He also said that he had dozed off. He said that the next minute, the manager was saying he had to pay $200 for extra services and that Ms X was upset and asking him what he had done. Mr Prasad said
he did not know but agreed to just pay and walked out. Mr Prasad said he did not remember being pushed up by the wall by the manager. When the allegations were put to him, first as to the sexual violation by anal penetration, he replied:
No, na she, she had never agreed to something like that. She had never agreed to something like that. I know for sure. And plus I’m not getting an erection how can I do that.
[39] As to the sexual violation by oral connection, Mr Prasad said “I didn’t do that. I didn’t force” and that he was going to pay for oral. He said he did not remember her doing that to him as well.
[40] The Judge then set out that Mr Prasad elected to give and call evidence and traversed the evidence given. Mr Prasad said that his intention was not to just have sex, but to go to the club and have relaxation time. He referred to having erection issues and to medical records which related to the size of his penis. He said that he had dozed off in the room and the next thing he heard was the door going bang. He dressed and went out of the room and one of the managers came through asking where Ms X was. He said he did not know and went to the bar. He said that another manager then came and pushed him, asking “where’s X” and “what have you done to her?”. Mr Prasad said he had done nothing; he did not know. The manager then said he had to pay $200. Mr Prasad said he initially questioned that but did not wish to argue because she had pushed him against a wall. He said he was given no reason for the request for the additional money.
[41] The Judge recorded that Mr Prasad confirmed that he was not saying that because of the size of his penis he was not able to penetrate Ms X’s anus, rather he focused on the ability to get an erection. Mr Prasad confirmed a discussion about oral sex and agreed that Ms X said she would charge an extra $200 for that and confirmed that on his version of events he did not get oral sex. Mr Prasad expressed the view that he had caused Ms X frustration because he had dozed off and was not able to maintain an erection. He denied saying to the manager that Ms X had told him that “he could” in relation to the allegation that he had removed his condom and penetrated her anally. Mr Prasad maintained that Ms X had fabricated her complaints, suggesting that the complaints were financially motivated.
[42] The Judge then discussed the evidence of Ms Z who was flatting with Ms X. Ms Z said that she and Ms X were evicted from their flat two weeks after the incident and that Ms X raised with Ms Z whether Mr Prasad would give her money. Ms Z described Ms X as appearing desperate. Ms Z described Mr Prasad as one of Ms X’s favourite clients. Ms Z said that Ms X said she did not remember what happened but did say that he had tried to do a “back door”. Ms Z asked whether it happened, but Ms X indicated that she was not sure and did not remember. Ms Z also recounted how some girls at the club would talk about getting money from a client if they mentioned they were going to the police. Ms Z gave evidence of a discussion about whether Ms X could charge Mr Prasad $2,000 for not using protection.
[43] The Judge referenced the evidence from Mr Prasad’s current partner who described the nature of their sexual relationship and Mr Prasad’s issues with maintaining an erection.
[44] The Judge then turned to an analysis of the evidence. She said that aspects of Ms X’s account raised a possible evidential basis for consent in relation to the oral connection, although Mr Prasad denied any such connection occurred. The Judge gave herself a tripartite direction before turning to consider Mr Prasad’s account. The Judge said that she did not find Mr Prasad’s account of events compelling. On a number of occasions his account altered as to between his DVD interview and evidence in Court. She said that in evidence Mr Prasad downplayed the purpose of his visit to the club. He made much of his erection issues. It was initially suggested that he could not have anally violated her in the suggested position but that changed to him being unable to sustain an erection. The Judge contrasted this with the DVD evidence where Mr Prasad acknowledged that he paid for the girlfriend experience which involved “normal” sex. The Judge found that while Mr Prasad may have had some difficulties in sustaining an erection, the fact he paid for the girlfriend experience, which included an intention to have vaginal intercourse, suggested he was able to have an erection. The Judge found that Mr Prasad was physically able to anally penetrate Ms X in the way she described.
[45] The appellant takes issue with a number of these credibility findings and the reasons for them. The appellant says there was no change in his evidence as between
his police interview and the evidence he gave at trial. Rather the issue with maintaining an erection coexisted with the issue with the position. Mr Kumar points out the physical differences in size between the complainant and Mr Prasad and says that the size of the complainant contributed to the problems with the position. It is the contention of the appellant that the Judge should not have taken any adverse credibility findings from, what was not in actual fact, a change in the evidential position.
[46] The appellant also criticises the Judge’s reliance on the fact that Mr Prasad paid for a girlfriend experience which included an expectation of sex and says that it does not necessarily follow that Mr Prasad certainly expected to have sex. Rather, he may well have been content to simply have the company of Ms X.
[47] The Judge did not accept Mr Prasad’s evidence that he simply dozed off in the early stages of the interaction or that Ms X got annoyed that Mr Prasad could not sustain an erection and so left the room. The Judge found that implausible. She regarded Mr Prasad’s apparently jovial behaviour after the event as overly animated and in stark contrast to others around him, and also to how he presented when he first arrived at the club. The Judge said that it appeared to be an act and an attempt to downplay what had occurred. The Judge said that Mr Prasad’s account was also directly at odds with other evidence, in particular, statements attributed to him by the club managers. The Judge did not accept Mr Prasad’s denial of anal penetration. She did not accept Mr Prasad’s evidence that there was no oral connection but did accept that there was some discussion around payment for oral sex. Overall, the Judge found Mr Prasad’s account on the critical issues to be implausible and put it to one side. The Judge said that the additional defence evidence did not assist the Court. Mr Prasad’s partner candidly accepted that he was able to have an erection and Ms Z’s opinion as to Mr Prasad’s character and whether he committed the acts in question was irrelevant.
[48] The Judge then turned to consider the Crown evidence. She said that the overall impression of Ms X was that she was an honest witness who did her best to recall events as accurately as she could. The Judge noted that Ms X made appropriate concessions and did not exaggerate. The Judge described Ms X as forthright in her evidence and said that she frankly acknowledged a number of matters that could have shown her in a poor light, including the issue of compensation. The Judge said in the
context of the case it was inevitable that Ms X would view things in such a way. In some respects, her reference to the $2,000 fine for not using a condom went to her credibility as showing a consistency in her complaint. Ms X was willing to concede she had considered seeking some type of financial compensation to settle the case but denied any motivation to give untruthful evidence. The Judge said that although there were some external inconsistencies in Ms X’s evidence, they were not critical and were understandable. It was apparent from the CCTV footage that Ms X was in a distressed state immediately after the incident. The CCTV footage was compelling and consistent with how she presented to the managers. In conclusion, the Judge found Ms X to be an honest and credible witness with a good recollection of critical matters. Aspects of her evidence were also corroborated by other witnesses or by other evidence such as CCTV.
[49] The recent complaint evidence the Judge found to be very consistent, and any inconsistencies were not material enough to have any bearing on the credibility and reliability of the two recent complaint witnesses who were managers at the club and who the Judge described as “impressive”. The Judge found that there was no reason for the managers to lie which, while not decisive, added to the evidence. The Judge accepted their recall of what Mr Prasad said to them.
[50] As for the forensic evidence, the Judge said that she put that aside as inconclusive. The Judge also placed no weight on Ms Z’s evidence that Ms X’s complaint to her was that he “tried” to anally penetrate her. She said it was apparent even from Ms Z’s evidence that the relationship with Ms X had deteriorated, and it would have been apparent to Ms X that Ms Z held certain views coloured by her own experiences. Much of Ms Z’s evidence, the Judge said, had the flavour of personal opinion.
[51] I discussed with Mr Kumar the fact that the opinion evidence from Ms Z is clearly inadmissible, and Mr Kumar did not seek to make any submission opposing that. However, Mr Kumar’s position is that the relationship between Ms Z and Ms X cannot account for the evidence that Ms Z gave because it is apparent that Ms X had raised concerns with Ms M, one of the managers, very quickly after the complaint was made. Mr Kumar says that the fact Ms X raised that concern so quickly contributed
to her credibility. As I indicated to Mr Kumar, I accept that Ms X’s evidence as to the exact nature of the recent complaint evidence was something that the Judge had to consider. However, Ms Z’s opinions about the veracity of the complainant were clearly inadmissible.
[52] The Judge accepted Ms X’s evidence that Mr Prasad first anally penetrated her and then had oral connection between her mouth and his penis. The Judge said that on Ms X’s account of the oral/genital connection, the issue of consent arose. While acknowledging that Mr Prasad’s defence was not advanced around consent in respect of that charge, the Judge said that she must apply the standard of proof on that issue and consent must be assessed by reference to Ms X’s account and any other reliable evidence given that Mr Prasad denied the event. No issue was taken with that approach, and it is clearly correct.
[53] The Judge found that there was evidence upon which it could be said that the Crown had not excluded consent on Charge 2 (the oral/penile connection). Ms X referred to her confusion after the events which formed the basis of Charge 1 (anal penetration). There was some discussion between her and Mr Prasad, and he was trying to placate her. Ms X appeared clearly troubled by the thought of leaving the room prematurely and the financial penalty that would follow. On more than one occasion she spoke of at least an initial decision on her part to go through with oral sex even though this was reluctant. The Judge said that whilst Charge 2 followed from non-consensual conduct which the Court found proven (namely, the anal penetration), the acts which formed the basis of Charge 2 must be considered separately.
[54] The Judge said that while she believed Mr Prasad very likely violated Ms X orally in the way she alleged, there was room for an honest and reasonable uncertainty on the question of consent, solely on the basis of what Ms X said in her interview. The Judge said it was not a straightforward matter but, put simply, she could not be sure.
[55] The verdicts that followed from these findings were guilty to Charge 1 and not guilty to Charge 2.
Discussion
[56] The appellant contends that the Judge erred when stating that the defence initially suggested that the appellant could not have anally violated Ms X in the suggested position, in essence saying he could not have reached her anus, and that the defence position changed to him being unable to sustain an erection. The appellant contends that, contrary to the Judge’s finding, the defence did not change its position during the trial and always maintained it was not possible for Mr Prasad to have violated Ms X in the way she described. The appellant argues that the two contentions were complementary and that both were maintained. The appellant takes issue with the finding by the Court that the “girlfriend experience” necessarily involved vaginal sex and therefore formed a proper basis for finding that Mr Prasad was able to sustain an erection.
[57] The appellant says that the Judge further erred by placing weight on the fact that in the DVD Mr Prasad did not recall Ms N pushing him against the wall but in evidence gave detailed evidence around the interaction. The appellant says that Mr Prasad had seen CCTV footage numerous times after his DVD interview and was able to recount Ms N pushing him against the wall because he had reviewed the footage. By contrast, the interview with the police occurred four months after the alleged incident when his recollection and memory would have faded. The appellant says her Honour erred when she relied on this as a credibility issue.
[58] I do not find that the Judge erred resulting in a miscarriage of justice in the assessment of the evidence on those points. One explanation for the differences between the interview and the evidence might be a refreshing of memory. But the other is that the appellant when speaking to police tried to minimise the events after the incident, but once CCTV footage became available was forced to accept that the confrontation had occurred in that way. It is obviously against the appellant’s interests to accept such a confrontation because it supports the Crown case that something untoward had happened and that the staff at the club were unhappy with him. It was for the Judge to make that assessment having heard and seen the evidence.
[59] The finding that the appellant had gone to the club intending to have sexual intercourse was not only open to the Judge but followed logically from the evidence as a whole. The fact that the appellant had issues maintaining an erection was squarely in evidence and accepted by the complainant. Having heard and seen both the interview and the appellant giving evidence it was open to the Judge to conclude that the Appellant placed weight on different factors in evidence when compared to what he told police, and to find that this affected the Judge’s assessment of him as a witness.
[60] A further error is raised on the basis that the Judge found that Mr Prasad was less definite in his DVD interview about whether he had consumed alcohol. Again, the appellant says that Mr Prasad’s view of the CCTV footage had refreshed his memory, and it was unfair to place any weight on the differences in the DVD interview and Mr Prasad’s evidence. However, the Judge did not place significant weight on the alcohol issue. She just did not find his accounts consistent in some details. There may be explanations for the inconsistencies but that is an evaluative assessment for the Judge who was aware of the sequence of events and the time between the incident and the police interview.
[61] The appellant says that the Judge could not have found on the evidence that Mr Prasad was physically able to anally penetrate Ms X in the way described and said that Ms X herself had said that Mr Prasad had erection issues. The appellant says that the finding that Mr Prasad was physically able to anally penetrate Ms X was neither supported by evidence nor logical and cannot be sustained.
[62] This is simply a submission that the appellant does not agree with the Judge’s finding. The complainant herself describes the erection issues and said that the appellant blamed the condom. The allegation is that he removed the condom before anally penetrating her. The complainant did not deny that the erection issues affected the extent of the penetration. It is illogical that the complainant would agree that the appellant had those issues if she were inventing the penetration. On the appellant’s version of events, nothing untoward had happened and yet the complainant has made a concerted effort to make a false allegation against him. If she were willing to do that it is difficult to see why she would acknowledge erection issues and say that it had not been as bad as it could have been.
[63] It also has to be said that a defence based on impossibility is a difficult defence to succeed with. The physical position described by the complainant was her lying on her stomach and the appellant on top of her penetrating her anus. I am entirely unsurprised that the Judge found that penetration in that position was able to be achieved.
[64] The appellant says that the Judge selectively and inappropriately placed weight on one of the manager’s evidence when that witness had, on the appellant’s case, conceded that she lied about her interaction with the appellant in the hallway after the alleged incident.
[65] That supposed lie refers to a statement in the witness’ written statement where the witness said that Mr Prasad was moving his hands around and trying to calm the witness down, whereas the appellant says the CCTV footage does not show him moving his hands in the way described. The witness said that Mr Prasad had his hands up going “X’s ok”. The witness said in evidence that she had not seen the CCTV footage and that she could only tell him what she remembered. The appellant says that the manager also lied about him drinking alcohol. It is clear however that the witness gave evidence that she thought it was alcohol but broadly accepted it was more likely to be coffee.
[66] Looking at the evidence afresh I do not find that it establishes any deliberate lies on the part of the witness. Significant parts of the witness’ evidence were corroborated and in any event the witness was a recent complaint witness and not a witness who gave direct evidence of the offending. Even if she had lied that would not undermine the complainant’s evidence, it would lessen the impact of the recent complaint evidence from that witness. There was however other undeniable evidence that the complainant was upset and complaining immediately after leaving the bedroom.
[67] That leads me to the situation of the recent complaint evidence given by Ms Z who was called as a defence witness. Ms Z’s evidence was that the complainant complained that Mr Prasad had “tried” to anally penetrate her. The appellant says that the Judge should have accepted the evidence that the complainant was only
complaining of an attempt and that this shows inconsistency on the part of the complainant.
[68] It is clear that the Judge was not impressed with Ms Z and her motivations for giving evidence and the Judge was in a better position than I am to make that assessment. It is clear from Ms Z’s evidence that Ms X was making a broadly similar complaint to her about Mr Prasad and was alleging an event that Mr Prasad denies happened in any way at all.
[69] In any event, as with the previous witness, recent complaint evidence is not direct evidence. Even if the Judge had accepted that Ms X had been equivocal in whether penetration actually occurred when speaking to Ms Z, the Judge would still be entitled to go back to Ms X’s evidence and consider whether she found Ms X credible. People may have various reasons for what they say when complaining to other people. They may not wish to be as forthright or the words that Mr Prasad “tried” to have anal intercourse with her may refer to the incomplete act of anal intercourse.
[70] Even if the Judge was not justified in setting aside Ms Z’s evidence, that would not itself lead to a miscarriage of justice. However, in my view, the Judge heard and saw Ms Z and Ms X, and the finding, that she did not place weight on Ms Z’s evidence, was a finding that was open to her.
[71] The appellant said that the trial Judge failed to pragmatically account for the culture within the sex industry and brothels and for the fact that Mr Prasad blamed himself for not having an erection and dozing off. I find that submission somewhat implausible. The idea that a sex worker would become upset or aggrieved because she effectively does not have to work that night seems farfetched. The appellant says that there is nothing sinister about his behaviour after the alleged incident. He says he had a clear opportunity to leave the premises and, if he had done anything wrong or unlawful, he would have done so. The appellant complains that her Honour’s conclusion was mere speculation and was well short of the requisite standard and a strained rationale to suit the Crown case.
[72] Again, I do not agree. The Judge saw the CCTV and was entitled to form a view of the appellant’s behaviour as incongruous. Even on his account the booking had not gone well, the complainant had become upset and left the bedroom. The appellant’s jovial behaviour — more jovial than when he arrived — is difficult to reconcile with his own account of events.
[73] There is an issue as to where the complainant was when she pushed a buzzer or intercom. The complainant says she pushed it in the kitchen, whereas the manager’s evidence suggests she pushed it in the bedroom. It is difficult to determine exactly where the buzzer was pushed. There was apparently an intercom in both the kitchen and the bedroom, but in any event, I do not think that anything turns on it to the extent that it undermines the complainant’s credibility. It is clear from the evidence that the complainant was upset and distressed, and also concerned about leaving the bedroom because of the financial consequences for her. The fact that she said she was “leaving the room” to the manager does not necessarily mean she had not already left. It might mean that she wanted to maintain the position that she was still in the room because of the financial consequences of having already left. It is also perfectly understandable that a complainant who has been through a traumatic event might not recall such a detail. I do not find any error in the approach that the Judge took in respect of the complainant’s credibility based on a small potential inconsistency about which intercom she pressed.
[74] A further ground of appeal relates to the DNA evidence. This was not argued before me today, possibly because I issued the previous decision, but it remains a live ground of appeal and I must deal with it. Some of this repeats the discussion in the earlier decision.
[75] The appellant says that the Judge erred by putting aside the forensic evidence as inconclusive and in refusing a defence application for the trial to be adjourned, part heard, to enable ESR to undertake the comparison of the replicated anal DNA with the reference DNA.
[76] I note that the application was made partway through the trial and would have required a delay of a number of weeks. Obviously, if the evidence was sufficiently
important in the context of a judge-alone trial that would be perfectly possible and should have occurred. This appeal point relies on the fact that the DNA sample was not tested. That was on the basis it would offer no meaningful comparison because if Mr Prasad’s DNA contained the two sites in the sample that would tell the Court nothing as many men might also have DNA with the same two sites. The appellant says that the evidence is more useful to exclude Mr Prasad. If his DNA did not match the two sites in the sample, then he could not have contributed to the DNA on that sample. That is clearly correct. There was a potential for testing of the sample to exclude Mr Prasad as being the contributor to it. The issue becomes however whether that would in fact exclude Mr Prasad from having anally penetrated Ms X or whether it would have such potential weight that it could have affected the outcome.
[77] On this issue I look at the matter afresh, and specifically on the basis that the DNA testing would exclude Mr Prasad. I ask myself whether that finding could lead to a different verdict assessing the matter afresh.
[78] I come to the conclusion that it would not. That is because the case was primarily decided as a credibility finding. The Judge found Ms X a credible and reliable witness and the reasons she gave were compelling. Ms X’s account was supported by immediate and consistent complaint evidence. Ms X had an injury to her anal area that, while not determinative, was consistent with what she said had happened. It was perfectly open to the Judge to have regard to the fact that there was an injury that would explain the complainant’s evidence that she was bleeding following the incident. It is another strand of circumstantial evidence which the Judge was entitled to weigh into the mix of evidence and to consider the coincidence that a complainant complaining of anal intercourse would happen to have an injury consistent with trauma to her anus. The credibility findings which the Judge came to were perfectly open to the Judge, including the findings about the concessions properly made by Ms X. The picture painted by the evidence as a whole was strongly supportive of Ms X’s complaint.
[79] In the circumstances, the DNA evidence was neutral, whether it excluded Mr Prasad or not. If it could have come from him it tells the Court nothing because it could equally have come from others, and it should be given no weight. If it could not
have come from him it also tells the Court nothing because, as the forensic scientist explained, there are many reasons why his DNA may not be found following an incident of intercourse. That includes the passage of time and the probable lack of ejaculation given that Mr Prasad and the complainant describe erection issues and a desire by Mr Prasad to engage in further oral/penile connection after the anal penetration.
[80] The male DNA with only two sites is simply a neutral factor that cannot assist one way or another. That was the conclusion I came to in the previous decision declining an order that the sample be tested prior to the appeal and that was the reason that the application failed.
[81] As I said in the previous decision, there is nothing in the submission that Mr Prasad in seeking the testing is willing to take a risk that the DNA will implicate him. It is incapable of doing so. If his DNA has the two sites, it tells the Court absolutely nothing and is so irrelevant that the evidence should not even be before the Court. If Mr Prasad were excluded as the contributor of the sample, that also tells the Court nothing. It is an absence of evidence. It does not mean that it is impossible for him to have violated Ms X in the way that she says that he did. In my view the Judge did not err in putting the forensic evidence to one side.
[82] I go further in my assessment and consider the evidence on the basis of the DNA excluding Mr Prasad. When I do that, I reach the view that the evidence was sufficient, adopting the Judge’s credibility findings, to find Charge 1 proved beyond reasonable doubt. The case depended heavily on credibility findings and the Judge had the benefit of hearing and seeing the witnesses. The credibility findings were open to the Judge and led inevitably to the verdict on Count 1.
[83] Credibility findings can sometimes be difficult to articulate although reasons must be given. In this case the Judge gave a number of reasons, and they are reasons that commonly support credibility findings:
(a)Does a witness make a concession when concession is called for? Ms X did in relation to the money that she had considered asking Mr Prasad for to settle the matter; and in relation to the erection evidence.
(b)Does she make concessions that are against interest? Both of those are against interest.
(c)Is the behaviour of the complaint consistent with what she alleges? Again, she was described, and seen on CCTV footage, as upset and immediately complaining. Her complaint to all of the recent complaint witnesses involved an allegation of unwanted anal sexual contact. Even in respect of Ms Z, that was the complaint, although there was some variation as to whether the penetration had been achieved or not in the conversation with Ms Z. With the manager immediately after the event, Ms X was very consistent and clearly upset and complaining close in time.
(d)Is there corroborating evidence? The medical evidence, while not definitive, is corroborative. As I said, it would be a strong coincidence for a person complaining of anal penetration to have an injury consistent with penetration. The effect of that should not be overstated but it cannot be ignored. It must be weighed in the balance, as the Judge did.
[84] So far as the DNA was concerned, the fact that the Judge declined the application for the testing to occur simply reflects the Judge’s view that the evidence was of no use either way. I agree with that finding. It is a shorthand way of saying that even if the DNA excluded Mr Prasad, and the Judge was open to the idea that it could have done, it would have made no difference to her finding. The male DNA was on the anal and perianal swabs, which are external. It was not on the rectal swabs, which are internal. The potential for the DNA to have been transferred from the genital area was acknowledged by the expert witness. It is not evidence that adds anything to either case. I find that, even if Mr Prasad were to be excluded as contributing to the DNA samples, the conviction is nevertheless safe by some margin.
Conclusion
[85] It follows from my assessment of the evidence that I find no error in the District Court Judge’s decision. Assessing the evidence afresh, I come to the same view as the trial Judge. I would return a guilty verdict on Count 1.
[86]The appeal is dismissed.
Wilkinson-Smith J
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