Pandamooz v R

1. [1]

   ADAMSON JA: Aref Pandamooz (the applicant) seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his conviction for two counts of sexual intercourse without consent, following a trial by jury before Culver DCJ (the trial judge) in the District Court in Sydney.

2. [2]

   The indictment charged the following two counts, in identical terms, contrary to s 61J(1) of the Crimes Act 1900 (NSW) (the Act), namely that on 19 May 2019, in Darlinghurst: “he had sexual intercourse with [the complainant] without her consent, knowing she was not consenting, in circumstances of aggravation (that he deprived [the complainant] of her liberty for a period before the commission of the offence).”

3. [3]

   The trial commenced on 15 November 2021. The jury returned the verdicts of guilty to both counts on 29 November 2021.

4. [4]

   At the time of the alleged offences, s 61HE of the Act relevantly provided as follows:

5. [5]

   Section 61HE(8)(a) of the Act in the terms set out above was in force from 1 December 2018 (when s 61HE was introduced) until 31 May 2022, when s 61HE was repealed.

The grounds of appeal

1. [6]

   The applicant seeks leave to appeal against his conviction on five grounds:

The trial

1. [7]

   In order to address the grounds of appeal, it is not necessary to summarise all the evidence at the trial in detail, although some aspects of the trial will be recounted. The complainant was the principal witness in the Crown case. The Crown also relied on evidence adduced from the complainant’s friends and associates, Ms K, Ms W, Ms S and Mr P. The applicant gave evidence in his case.

2. [8]

   The Crown, in its opening, outlined the evidence which it was expected that the complainant would give, which was to the effect that she did not consent to either of the two acts of sexual intercourse. In opening address, the Crown said, of the relevance of the complainant’s intoxication:

3. [9]

   I understand this part of the Crown’s opening to allow for the operation of s 61HE(8)(a) of the Act: namely, that the complainant did not have the capacity to consent to sexual intercourse because of her intoxication. This aspect of the opening was not reflected in the closing, in light of the complainant’s evidence that she did not consent and that she did, and said, things before and during the assaults to communicate her lack of consent to the applicant, rather than that she was too intoxicated to have been able to consent.

4. [10]

   In the defence opening before the Crown case, defence counsel identified the primary issue as being consent, as the applicant admitted having sexual intercourse with the complainant.

5. [11]

   The complainant, who was 24 years old at the time of the alleged sexual assaults, gave evidence that she visited a friend, Ms K, at her home at Bondi at about 7.15pm on 18 May 2019. They consumed a bottle of rosé together with crackers and hummus over the next hour, after which they went to Bar Reggio, arriving at about 8.30pm. The complainant had two or three glasses of wine and ate pizza and pasta. After about two hours, she went with friends to a party nearby where she drank a glass of wine. Subsequently, she travelled in an Uber to the Lord Gladstone Hotel. While there, she drank two whisky shots and two full strength pints of cider.

6. [12]

   The complainant, Ms K and the latter’s boyfriend went to the Stonewall Hotel on Oxford Street where they joined another couple, who were their friends. According to CCTV footage tendered in the Crown case, they arrived at 1.14am and went upstairs to the second level where there was a dance floor. The complainant assessed her state of intoxication on her arrival at the Stonewall Hotel as “about a six” out of ten and, after the additional drinks, “probably seven”. When she was on the dance floor she was stumbling but did not feel sick and “was just happy and, and yeah, just silly basically”. In cross-examination, she accepted that she was sufficiently sober enough to speak with security staff, climb stairs, think to put her purse aside and dance unassisted. These actions were depicted on the CCTV footage which was played to the jury.

7. [13]

   The complainant drank one or two whisky shots and a vodka and soda. She described herself as feeling “quite drunk but merry” and decided to dance. She thought that was when she first met the applicant. She said “… it happened so quickly, we started kissing and then I remember just running back to my friends…”.

8. [14]

   On the dance floor, the complainant “felt innocent and just playful” but also “quite drunk”. She went back to her friends because she wanted to dance with them. The complainant noticed that the applicant was behind her “so I would sort of be dancing one second and then be dancing with him and kissing him again”. She noticed that Ms K was being “protective” of her and “trying to stop” the interaction between the complainant and the applicant. The complainant was not worried at this stage, but “… was quite gangly… I just mean kind of floppy or not in full control of my motor skills, like I was just drunk”. When the applicant pulled her to him, he was “playful” but “definitely persistent”.

9. [15]

   According to the complainant, when Ms K went back to the booth where the complainant’s group had been sitting, the applicant started kissing the complainant again and taking her somewhere (to the bathroom). Her evidence was:

10. [16]

    The complainant said that it suddenly became light (which led her to infer that the applicant had opened the bathroom door). The applicant was leading her by the arm. The complainant described herself as quite drunk and thought that it was possible that she was at the bar (on a different level). She said:

11. [17]

    She said that she leant back “resisting sort of, just to slow down what was happening”.

12. [18]

    In the complainant’s cross-examination, the following exchange took place:

13. [19]

    In the men’s bathroom, the complainant was shocked by how quickly the applicant pulled her into the far right (of two) cubicles and locked the door. She believed there was another man or two in the bathroom. She described herself as feeling “gross … embarrassed and just confused”.

14. [20]

    The applicant started kissing her, and she did not pull back but did not reciprocate, starting to feel confused, in shock or overwhelmed. She then pulled back. She felt pressure on her shoulders and him moving her head towards his groin. She resisted and stood up, and “asserted myself as that’s not something I want to do”. She said:

15. [21]

    The complainant thought she opened the door inwards for a little way but believed that other men were in the bathroom. The applicant then “used [her] hesitance as an opportunity and then [shut] the door”.

16. [22]

    The complainant realised the applicant had his penis out of his pants, and he pulled her underwear and pants down, and put his penis in her vagina. She froze. She estimated that the applicant had sex with her for about 30 or 40 seconds before she attempted to stop it. She said that she “sort of came out of this fog where I had started to feel numb and [believed that she] tried to open the door again”.

17. [23]

    The complainant said that “then suddenly it was happening again”. She believed that the applicant had shut and locked the door (by holding the lock). He pushed her into the corner and she hit her head. He had sex with her again for about 30 to 40 seconds.

18. [24]

    The complainant said that the applicant pulled her pants back down and put his penis in her vagina again (a third time). She remembered this “clear as day”. The complainant said that this act of sexual intercourse (count 2) took about 20 seconds.

19. [25]

    The complainant said:

20. [26]

    The complainant interpreted his exclamation as meaning “[w]hat are you doing”. She understood him to be “really frustrated”.

21. [27]

    The complainant pulled up her pants and opened the door, said “I need to go back to my friends” and then ran back to her friends (her evidence of running back to her friends is corroborated by the CCTV footage). She hugged her friends on being reunited with them and sat between two of her male friends with her back against the wall so that she could “see out and feel safer”.

22. [28]

    In her evidence in chief, the complainant identified on a plan of the male bathroom in the Stonewall Hotel where she and the applicant were at the time of sexual intercourse. These annotated drawings were tendered as exhibits in the prosecution case.

23. [29]

    The complainant estimated her level of intoxication in the bathroom was eight out of ten. She considered that her cognitive ability to appreciate how they arrived there so quickly, or why it was happening, was affected not only by the alcohol but also by “the disassociation of feeling overpowered”.

24. [30]

    The CCTV footage was played to the complainant, who identified herself and the applicant in the footage and gave some evidence as to what it depicted.

25. [31]

    The complainant did not tell her friends that night what had happened, as she “was in shock and also felt very guilty and ashamed and disgusted”.

26. [32]

    Ms W, with whom the complainant had breakfast the following day, noticed that she was a bit upset. She said that the complainant had mentioned that she had hooked up with someone and was not sure what happened.

27. [33]

    On 20 May 2019 and 22 May 2019, the complainant called the 1800RESPECT line, which she said was a counselling service “for sexual assault”. Audio recordings of the two calls were played to the jury at trial, and edited transcripts provided to the jury. These transcripts are the subject of ground 4. What occurred in relation to the playing of the audio recordings and transcripts, which is relevant to grounds 4, 5a and 5c, is set out in detail below.

28. [34]

    On 21 May 2019 (the day between the two calls), the complainant was examined by Dr Mary Stewart from the Northern Sydney Sexual Assault Service at Royal North Shore Hospital. Dr Stewart gave evidence of what the complainant had told her which broadly corresponded with the complainant’s evidence.

29. [35]

    Ms S, a colleague of the complainant, gave evidence of what the complainant had told her on 23 May 2019.

30. [36]

    The following week, the complainant went to Mona Vale Police Station and made a statement. Complaint evidence was also adduced from others, including Mr P and Ms K.

31. [37]

    The Crown called Dr Van Niuwenhuijzen, a pharmacologist, who gave evidence as to the complainant’s estimated blood alcohol level at the time of the alleged offending.

32. [38]

    The Crown also played the police interview of the applicant (ERISP), which was conducted on 30 June 2020 (some 13 months after the alleged offending). A transcript was provided to the jury as an aide-memoire. The applicant was questioned about his knowledge of the complainant’s state of intoxication:

33. [39]

    The applicant gave evidence that the complainant had consented to the sexual intercourse. In his evidence, he described oral sex, mutual masturbation, followed by sexual intercourse (one act of which lasted, on his evidence, about four minutes).

34. [40]

    In cross-examination, he confirmed he went to the Stonewall Hotel to look for people he knew and that he went to level 1 as the music was better. He denied his objective was to have sex. When he was asked about whether, since he had also had sex at the Stonewall Hotel the week prior, he thought he may be able to have sex again, he said he did not think of having sex with the complainant until he asked her.

35. [41]

    During the applicant’s cross-examination, the following exchange occurred:

36. [42]

    The trial judge dealt with the objection in the absence of the jury and rejected the question. When the jury returned the trial judge gave the following direction (which was not sought by the parties but, when suggested by her Honour, was agreed to by them):

37. [43]

    The applicant’s trial counsel did not ask the applicant about the complainant’s state of intoxication. Nor did the prosecutor cross-examine him about this topic.

38. [44]

    On 25 November 2021, the trial judge provided the parties with a draft elements document, marked MFI 14, which included a definition of “consent”, as follows:

39. [45]

    Later that day (25 November 2021), the trial judge revisited this direction and said to the parties:

40. [46]

    The trial judge indicated a concern that that might be confusing, and it might be better to say, “if you find [the complainant] was intoxicated by alcohol you can take that into account in considering whether she had the capacity to consent to sexual intercourse”. However, her Honour then said:

41. [47]

    Ultimately, the parties agreed that the paragraph defining consent (extracted above) ought be deleted because it was not relevant to whether the complainant consented (element 2, see below), because of the complainant’s evidence that she did not consent (and the defence case that she did). The trial judge confirmed with the parties that the evidence of the complainant’s intoxication was relevant to whether the applicant knew that she did not consent, was reckless as to whether she consented or had no reasonable grounds for believing that she did consent (element 3, see below).

42. [48]

    In closing submissions, the Crown did not raise the ground in s 61HE(8)(a) of the Act (that the complainant only consented because she was substantially intoxicated). Instead, the prosecutor emphasised the complainant’s evidence that she did not consent to the sexual intercourse, submitting it was very clear that the complainant was not consenting to either act of intercourse. The Crown acknowledged that the complainant was intoxicated and submitted that this affected her ability to make sense of the circumstances at the time. The Crown highlighted that the complainant was on the dance floor with friends, was intoxicated and having fun in an unfamiliar nightclub (where she did not know where the toilets were) before encountering the applicant at 1.41am, entering the toilets at 1.47am and, at 1.53am, running out of the toilet to return to her friends.

43. [49]

    At the end of his closing address, the prosecutor said:

44. [50]

    At that point, the jury was sent out for the adjournment and the trial judge raised the possibility that the Crown submission invited the jury to engage in illegitimate tendency reasoning. After lengthy consultation with counsel, her Honour brought the jury back and gave an anti-tendency direction.

45. [51]

    Defence counsel made much of the circumstance that the complainant did not tell her friends on the night and said that she did not tell them about the sexual intercourse “[b]ecause she was happy”. He placed significance on the circumstance that she did not tell anyone that she had been sexually assaulted until she rang the 1800RESPECT number. He said:

46. [52]

    On Friday 26 November 2021, the tenth day of the trial, the trial judge commenced her summing up. Her Honour gave the jury the elements document (MFI 15) and took the jury through the elements of the offence charged. In summary, the document set out the following elements in respect of each of the two counts which were required to be proved by the Crown beyond reasonable doubt:

    1. (1)

       that the applicant had sexual intercourse with the complainant by inserting his penis into her vagina (element 1);

    2. (2)

       that the complainant did not consent to the intercourse (element 2); and

    3. (3)

       any one of the following (element 3):

47. [53]

    Neither the elements document, nor this portion of the summing up, made any reference to the complainant’s intoxication. The jury was, however, directed that it could not take into account any intoxication of the accused.

48. [54]

    During the morning tea adjournment, the trial judge received two notes from the jury, only the first of which is relevant to this application. The first note (the jury question) read:

49. [55]

    The applicant submitted (as addressed below in relation to grounds 1, 2 and 3) that the trial judge should simply have answered the question in the affirmative. Her Honour informed the parties that she proposed to repeat the definition of consent; remind the jury of the complainant’s evidence that, at no stage did she consent; and also inform the jury that they were entitled to “consider any apparent symptoms of intoxication when [they came] to consider the accused’s position and understanding of [the complainant’s] consent”. Both parties agreed with this approach.

50. [56]

    The trial judge brought the jury back and answered the jury question as follows:

51. [57]

    As referred to above, the jury returned verdicts of guilty in respect of both counts on the following Monday, 29 November 2021.

The requirement for leave

1. [58]

   It was common ground that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules) was required for all grounds as no objection was made by the applicant’s trial counsel to any of the matters now raised as grounds of appeal. Indeed, in respect of each of the matters raised, the applicant’s trial counsel, after having been consulted as to the correct approach, acceded to the course proposed and adopted by the trial judge. Further, as none of the grounds raises a question of law alone, leave to appeal is also required. As the merits of each ground are relevant to the grant of leave, I propose to address the question of leave at the conclusion of my reasons.

Whether there has been a miscarriage of justice

1. [59]

   Each of the grounds of appeal, except for ground 1, alleges that the alleged error or irregularity identified caused the trial to miscarry. Before turning to the grounds of appeal, I propose to identify the relevant principles which apply to the determination whether a trial has miscarried.

2. [60]

   Section 6(1) of the Criminal Appeal Act relevantly provides, as its second limb, that the Court shall allow an appeal “on the ground of the wrong of any question of law” and, as its third limb, “or that on any other ground there was a miscarriage of justice”. Both limbs are subject to the proviso that the Court “may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

3. [61]

   To the extent that the second limb error is relied upon, the applicant must satisfy the Court the error of law produced a miscarriage of justice in the sense of a departure from trial according to law: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4], [13]. An inconsequential error is not a miscarriage. The applicant must show that the irregularity (or error) had the meaningful potential or tendency to have affected the result of the trial: Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (Hofer) at [116]-[118] (Gageler J). At [116], his Honour explained (footnotes omitted):

4. [62]

   At [41], the plurality (Kiefel CJ, Keane and Gleeson JJ) said:

5. [63]

   In DS v R [2023] NSWCCA 151 at [120], Yehia J (Beech-Jones CJ at CL and Weinstein J agreeing), after considering Hofer and authorities referred to below, proceeded on the basis that the error or irregularity will rise to the level of a miscarriage of justice where it is of a nature and degree that could realistically have affected the verdict, or verdicts, of guilt that were actually returned by the jury in the trial.

6. [64]

   In Saunders v R [2022] NSWCCA 273, Simpson AJA (Hamill and Ierace JJ agreeing) said:

7. [65]

   It follows from the principles set out above, that the applicant needs to establish a connection between the alleged error or irregularity and the verdict: Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [134] (N Adams J), referring to Hofer at [120]. The different terms used to explain a finding of miscarriage, such as “real chance”, “significant possibility”, “prejudicial”, all are different ways of expressing a realistic possibility of a causal connection between one or more identified legal errors or procedural irregularities and the verdict returned by the jury: Hofer at [120].

Grounds 1-2: the direction given by the trial judge regarding element 2 (whether the complainant consented to sexual intercourse with the applicant)

1. [66]

   These two grounds will be addressed together because they are related. These grounds turned on the following two matters, which will be addressed in turn:

   1. (1)

      the submission made by Mr Carroll, who appeared for the applicant, that the trial judge ought not to have directed the jury that they could take into account the complainant’s intoxication when assessing the applicant’s mental element for the purposes of element 3 in circumstances where the applicant had not been cross-examined about his knowledge of the complainant’s intoxication; and

   2. (2)

      the answer which the trial judge gave to the jury question and to the additional directions which the trial judge gave in that context.

2. [67]

   The first submission can be addressed briefly. As referred to above, the Crown tendered the applicant’s ERISP, in which he said that he had no knowledge of the complainant’s state of intoxication. It must have been readily apparent to the applicant and his counsel, through the Crown opening and the evidence adduced from the complainant and the pharmacologist, that the Crown was relying on the complainant’s intoxication as part of the circumstances surrounding the encounter between the applicant and the complainant on the dance floor which led to her being in a male toilet cubicle with the applicant: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16D-F (Hunt J). The Crown’s evidence of the complainant’s state of intoxication included her own evidence about what she had drunk in the hours preceding the sexual intercourse and how she felt during particular periods that evening. The Crown also relied on the CCTV footage which depicted the complainant as being somewhat disinhibited but also in control of her movements (able to climb and descend stairs, dance and run back from the male toilets to join her friends in the booth). Her intoxication was relevant to her disorientation, the expression of her lack of consent and her reaction to what occurred.

3. [68]

   There was no utility, from the Crown’s point of view, in putting to the applicant in cross-examination his (inferred) understanding of her state of intoxication in circumstances where he had said in his ERISP that he did not know about it and gave no evidence in chief as to her state of intoxication. The Crown did not seek to controvert the applicant’s evidence that he “had no knowledge” of the complainant’s state of intoxication. Accordingly, there was no issue joined on that matter. Therefore, there was no need for the Crown to cross-examine him to the contrary. It was understandable that the prosecutor decided not to give the applicant an opportunity to give a different version, in circumstances where he had not been asked about it in chief.

4. [69]

   In these circumstances, there was no obligation on the Crown to cross-examine the applicant about his knowledge of the complainant’s state of intoxication: see R v Arnott (2009) 26 VR 490; [2009] VSCA 299 at [105]-[109] (Ashley JA, Nettle and Redlich JJA agreeing).

5. [70]

   Thus, the trial judge was not only entitled, but also obliged (given the way the Crown case had been put), to direct the jury as to how they could use the evidence of the complainant’s intoxication when assessing the applicant’s state of mind for the purposes of element 3, to which it was relevant. No error or irregularity on this basis has been established.

6. [71]

   Mr Carroll submitted that the trial judge ought to have answered the jury question “Yes”, since that answer would have informed the jury of the correct legal position: namely, that a substantially intoxicated person could (in the sense of having the capacity to) consent to sexual intercourse. In the alternative, he put forward various options which he contended would have been a proper answer to the question.

7. [72]

   He contended that the trial judge’s answer was not responsive since it did not, in fact, answer the question. He submitted further that it might have confused the jury by making reference to element 3 as well as element 2, when the question pertained only to element 2. He submitted that it was also prejudicial to the applicant since it provided the jury with a “pathway to guilt” (because the trial judge in her answer referred to the complainant’s evidence that she did not consent).

8. [73]

   Mr Carroll also submitted that this Court ought not infer that defence counsel at trial was competent when he acceded to the trial judge’s proposed answer since this was a question which could be determined by this Court on an objective basis. He submitted that, because the inquiry was objective, there was no denial of procedural fairness in his not having raised the alleged incompetence of defence counsel as a separate ground of appeal, since it did not matter what defence counsel’s subjective view was.

9. [74]

   I am not persuaded that the trial judge’s answer was erroneous. Although her Honour could have answered the question in the affirmative, there were good reasons for her Honour to answer it in the way she did.

10. [75]

    In Alford v Magee (1952) 85 CLR 437; [1952] HCA 3, the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) adopted the approach advocated by the late Sir Leo Cussen (a former Chief Justice of Victoria), who insisted that it was “of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them” (at 466). The High Court endorsed the statement that “the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.”

11. [76]

    The Crown case, as confined by its closing address (Ngo v R [2023] NSWCCA 201 at [94]-[95] (Adamson JA, Chen J agreeing)), was that the complainant did not consent and manifested her lack of consent by resisting, freezing and trying to open the cubicle door to get away. It was not the Crown case that the complainant consented only because she was substantially affected by alcohol (which would have attracted the operation of s 61HE(8)(a) of the Act). The defence case was that the complainant consented by enthusiastically participating in sexual acts with the applicant (such as oral sex and mutual masturbation) as a prelude to the sexual intercourse to which she consented.

12. [77]

    Thus, there was no issue joined on the complainant’s capacity to consent or the extent to which that capacity was the consequence of substantial alcohol intoxication. It followed that the jury did not need to know of the effect of s 61HE(8)(a) of the Act because it did not arise on either of the two cases. By not answering the question directly, her Honour can be taken to have been abiding by the well-established limits on the trial judge’s licence to explain the law to the jury, which were endorsed in Alford v Magee.

13. [78]

    In substance, what her Honour did in answering the question was to remind the jury that the complainant’s evidence was that she did not consent and not that she consented because she was really drunk.

14. [79]

    It is also significant that the trial judge, in accordance with the approach approved by this Court in DJF v R [2011] NSWCCA 6 at [16] (Giles JA, R A Hulme J agreeing), consulted extensively with counsel about how the question ought be answered before bringing the jury back. Both counsel agreed with the trial judge’s proposed answer, which was then given to the jury in accordance with their agreement.

15. [80]

    Where an applicant seeks to rely on alleged incompetence of counsel in an appeal against conviction, it is generally necessary for the applicant to include a separate ground of appeal to that effect as a matter of procedural fairness to the Crown. To the extent possible, this Court ought determine an appeal which involves such an allegation by examining the record of the trial and determining from objective circumstances whether the applicant has had a fair trial: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [10] (Gleeson CJ). However, there are cases where a party (usually the Crown) may wish to adduce subjective evidence regarding the reasoning of the applicant’s trial counsel to enlighten this Court as to the reason for the forensic decision which is the subject of challenge and the Court allows such evidence to be admitted: see the discussion of the authorities in Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [29]-[31] (Macfarlan JA, Rothman and Bellew JJ agreeing).

16. [81]

    In the present case, notwithstanding the absence of a separate ground alleging incompetence of counsel, the question can be dealt with shortly. There was no prejudice to the applicant in the question being answered in the way proposed by the trial judge and acceded to by the applicant’s trial counsel. Indeed, by reminding the jury that the complainant said that she did not consent, her Honour forestalled the jury convicting on the basis that the complainant consented because she was drunk (and that, accordingly, she had not consented).

17. [82]

    In light of the trial judge’s other directions, the jury would have understood that it had to be satisfied from the complainant’s evidence that she did not actually consent before it could return a guilty verdict and that, if there was a reasonable possibility that she consented, it would be obliged to return a not guilty verdict. Thus, the answer to the jury question tended to favour the applicant because it removed from the jury’s consideration the question whether the complainant had the capacity to consent. In these circumstances, there was a clear forensic benefit to the applicant in the question being answered in this way, as his trial counsel can be taken to have appreciated. In these circumstances, the approach taken by the applicant’s trial counsel provides powerful evidence that he saw no injustice or error in the trial judge’s answer to the jury question or subsequent directions.

18. [83]

    The further direction given by the trial judge about the relevance of the complainant’s intoxication to element 3 was not responsive to the jury’s question. However, since it was related to the topic of intoxication (which arose in answer to the jury question) it was not inappropriate for the trial judge to give the jury that direction (it not having previously been given) as her Honour was still in the middle of the summing up.

19. [84]

    For the reasons given above, I am not persuaded that there was an error or irregularity, much less one which would be sufficient to have the effect alleged (of causing the trial to miscarry), since I do not consider that the answer was capable of affecting the verdicts which the jury actually returned.

20. [85]

    For these reasons, neither ground 1 nor 2 has been made out.

Ground 3: the trial judge’s reference to the complainant’s evidence

1. [86]

   Mr Carroll submitted that, by referring to the complainant’s evidence that she did not consent and not to the applicant’s evidence that she did, the trial judge directed the jury to decide a central factual question in favour of the prosecution.

2. [87]

   I do not accept this submission. When the direction is read in context, it is plain that the trial judge was referring to the complainant’s evidence to remind the jury that the complainant did not say that she only consented because she was drunk. Rather, the complainant’s evidence was that she did not consent (and, by implication, that intoxication was not such as to deprive her of her capacity to withhold her consent). It was not necessary, in answering the jury question, for the trial judge to refer to the applicant’s evidence that she did consent. Further, there was nothing in the words used by the trial judge to indicate to the jury that it was bound to accept the complainant’s evidence (and plenty in the balance of the summing up that it was a matter for the jury, as the tribunal of fact, to determine). I am not persuaded that the applicant has established any error or irregularity as alleged in ground 3.

The background to the playing of the recording of the calls made by the complainant to 1800RESPECT and the provision of the transcript of such calls

1. [88]

   In order to address grounds 4, 5a and 5c, it is necessary to set out what occurred when the audio recordings from two calls made by the complainant to 1800RESPECT on 20 May 2019 and 22 May 2019 were played, and transcripts provided, to the jury.

2. [89]

   On 18 November 2021, the Crown foreshadowed that leave would be sought for the recordings of the two calls made by the complainant to 1800RESPECT to be adduced in evidence. The Crown indicated that the parties were in agreement and the complainant had waived sexual assault communications privilege (which arose from s 293 of the Criminal Procedure Act 1986 (NSW)). The Crown provided transcripts of the recordings to the trial judge.

3. [90]

   The next morning, 19 November 2021, the Crown informed the trial judge that the transcripts (which had already been provided) were to be edited. The prosecutor said that he had already discussed one transcript with defence counsel (of the call on 20 May 2019) and that the second (of the call on 22 May 2019) was “straightforward”.

4. [91]

   Subsequently, the jury was provided with the transcripts of the recording of the first call to help them understand the audio recordings, which were then played to the jury. While the recording of the first call was being played, the prosecutor noticed that statements which were intended to be excluded had not been edited from the transcript of the 20 May 2019 call and stopped the recording before that part was played. The prosecutor indicated that he wanted to raise something in the absence of the jury. The trial judge (after confirming with the prosecutor that this was appropriate) asked the jurors to leave their transcripts on their seats before leaving the courtroom.

5. [92]

   The portion of the transcript which ought to have been deleted was as follows:

6. [93]

   The trial judge said:

7. [94]

   The trial judge and the parties agreed that the transcripts be collected from each juror’s place and destroyed, that the audio recording be edited and that a fresh transcript be prepared, which deleted the relevant portion. The trial judge asked whether there was any other issue and asked that defence counsel also check the edited version.

8. [95]

   The trial judge raised a further issue with the parties in the following terms:

9. [96]

   Both parties agreed with the direction proposed by the trial judge. The following further exchange occurred in the absence of the jury:

10. [97]

    When the jury returned to Court after the adjournment, the trial judge said:

11. [98]

    The trial judge also gave a direction about the opinions expressed in the recording as foreshadowed above.

12. [99]

    The audio recording was played to the jury. The jury was not provided with any transcripts at that stage because they had not yet been prepared (since the transcript of the first call was still being edited). During one of the breaks, the trial judge again raised the issue of the counsellor’s comments in the following exchange:

13. [100]

    The correct approach was discussed at length with defence counsel. The trial judge proposed that a further direction be given to contain the risk of prejudice arising from the counsellor’s comments. The breaks were longer that day because the complainant sought them due to the stress of hearing the recording of her conversations to the 1800RESPECT line.

14. [101]

    When the jury returned, the prosecutor proposed that the second call be played. After it was played, the trial judge gave the following direction:

15. [102]

    After a couple of questions were asked of the complainant, her evidence in chief concluded and her cross-examination began.

16. [103]

    At the end of that day (19 November 2019), after the jury had been sent away for the weekend, the prosecutor informed the trial judge that, despite the editing, the 1800RESPECT recording still included a reference by the complainant to a prior incident. The reference was in the first call, when the complainant said to the 1800RESPECT staff member:

17. [104]

    In addition, later in the call, the staff member said:

18. [105]

    The trial judge indicated that she did not think that the third statement necessarily transgressed s 293 of the Criminal Procedure Act since intimacy could refer to emotional intimacy.

19. [106]

    The trial judge noted the jury did not have transcripts of the two calls, and it was determined that the exhibit (the disc from which the audio recordings were played) would be uplifted and edited to remove the two passages and the trial judge would give a direction to the jury. Defence counsel said that he considered the third statement to have no probative value.

20. [107]

    The trial judge suggested that one way to address the issue was to excise the statements and say to the jury, inter alia, that there was something said on the basis of issues with intimacy, and that that way, both statements would come out. Both the Crown and defence counsel agreed. Her Honour indicated the proposed wording of a direction, which defence counsel said he considered was very thorough.

21. [108]

    On Monday 22 November 2021, in the absence of the jury, the trial judge raised the proposed direction that had been discussed on Friday 19 November 2021 and confirmed that it was suitable to the parties. In the presence of the jury, the trial judge gave the following direction:

22. [109]

    Edited transcripts of the two calls were provided to the jury.

Ground 4: alleged miscarriage from the admission into evidence that the complainant had “complex things around sex because of what happened in the past” and (according to the counsellor) “[difficulties] with intimacy”

1. [110]

   The way in which the evidence of the phone calls was adduced and the errors in the recordings and the transcripts have been set out at length above. The impugned evidence and the context in which it came, or might have come, before the jury can be summarised as follows:

   1. (1)

      The jury received transcripts that contained the first statement (‘I have called before but it was about something different, a while ago’). Those transcripts were recalled before the playing of the audio recording reached this statement. Accordingly, the jury did not hear this statement played.

   2. (2)

      The jury heard the second statement (‘I just – I have all these complex things around sex because of what happened in the past. I suppose he didn’t know that and he still did those things so [unclear]’) but, at the time the jury heard it, it did not have a transcript of the call.

   3. (3)

      The jury heard the third statement (when the counsellor said, ‘you - I think said something like, I’ve got a thing about intimacy and stuff around that’) but, at the time the jury heard it, it did not have a transcript of the call.

2. [111]

   The transcripts subsequently provided to the jury did not contain any of the three statements.

3. [112]

   Mr Carroll submitted that the jury would have inferred from the fact that 1800RESPECT was a sexual assault help line that the only reason the complainant had called the helpline “before” (in the first statement) was that she had previously been sexually assaulted. He said that the second and third statements would fortify this inference. Mr Carroll contended that if the jury knew that the complainant had complex issues about sex and intimacy because of her past experience of being sexually assaulted, this would make it less likely that the jury would accept the applicant’s evidence that the complainant acted in the manner he described (enthusiastic about sexual acts in a toilet cubicle in a night club with someone whom she had just encountered on the dance floor). Thus, he submitted that the admission of this evidence was highly prejudicial to the applicant.

4. [113]

   The first difficulty with this submission is that it would, in my view, be unrealistic to assume that the jury, who had been directed to listen to an audio recording and who had been provided with a transcript, would read ahead to the first statement, which was never played to the jury. Secondly, in the unlikely event that one or more jurors did so, it cannot be assumed that the juror or jurors would infer from the first statement that the complainant had called the helpline because she herself had been sexually assaulted (since this is not what she said); or that she had “complex things around sex” (as she put it in the second statement) because she had been sexually assaulted; or that the counsellor considered that she had issues with intimacy (as the counsellor put it in the third statement) because she had previously been sexually assaulted. While it is possible to speculate from these statements that the complainant had previously been sexually assaulted, this is by no means a reasonable, or the only, inference.

5. [114]

   It is always a question of judgment whether it is better to highlight something and direct the jury to disregard it or to remove it from the evidence and direct the jury to rely only on what is in the audio recording as reflected in the transcript. The trial judge consulted the parties on which course to adopt. The parties agreed with the approach taken by her Honour. The risk of prejudice arising from the first statement was almost non-existent. The risk of prejudice from the second statement was relatively low. The risk of prejudice from the third statement was also almost non-existent because, as the trial judge pointed out, “intimacy” is not synonymous with sexual experience. I do not consider that the jury’s verdict could have been affected by the way the three statements came before the jury, particularly having regard to the trial judge’s timely remedial directions.

Ground 5: alleged irregularities in the evidence and submissions

1. [115]

   Ground 5a overlaps with ground 4 which has been considered and rejected above.

2. [116]

   In order to address this ground, it is necessary to set out the background to the direction which the trial judge gave in respect of opinions expressed by investigating police officers in the applicant’s ERISP.

3. [117]

   The applicant was interviewed by police on 30 June 2020 through an interpreter. The applicant’s ERISP was played to the jury on 23 November 2021 and the jury was provided with a transcript. After part of the ERISP was played, the applicant’s trial counsel asked the trial judge to direct the jury that neither the applicant nor the officer in charge were experts on human behaviour, and what they said about how people respond in certain situations relating to sexual assault should not be taken into account by the jury as expert opinions. The trial judge outlined a direction which she proposed to give to the jury when it returned, with which the applicant’s trial counsel agreed. Her Honour also foreshadowed that she would give a direction about resistance and lack of resistance in the summing up.

4. [118]

   When the jury returned, the trial judge directed them as follows:

5. [119]

   The portions of the applicant’s ERISP which are the subject of ground 5b are set out in [147] of the applicant’s written submissions. The whole ERISP was played to the jury as part of the Crown case without objection from the applicant. In order to appreciate the gravamen the statements which are the subject of this ground, it is necessary to view the police officers’ statements in context and address them in turn.

6. [120]

   This statement/question was as follows:

7. [121]

   The police officer’s statement in Q63 was in response to the applicant saying that it was not sexual assault because the complainant did not report it to the Stonewall Hotel that evening.

8. [122]

   This statement was as follows:

9. [123]

   The statement in Q105 was in response to questions asked of the applicant about how his semen came to be found on a high vaginal swab of the complainant, to which he answered that it was not possible to get sexual gratification (ejaculation) in 30 seconds (being the time period nominated by the complainant for the sexual intercourse). He said, in answer to the question immediately preceding the comment at Q105 that the complainant could have called out for help and everyone would have heard her.

10. [124]

    This statement was as follows:

11. [125]

    Immediately prior to the police officer’s comment at Q116, the applicant had told police that it was not possible that the complainant would have frozen with fear because there was neither violence nor aggression.

12. [126]

    This statement was as follows:

13. [127]

    The police officer’s comment at Q127 was preceded by a long answer given by the applicant as follows:

14. [128]

    This question was as follows:

15. [129]

    The question at Q200, which appears to have been intended to clarify the applicant’s earlier answer that the complainant must have consented to sexual intercourse because she went to the cubicle with him. Q200 elicited the following answer from the applicant:

16. [130]

    This statement was as follows:

17. [131]

    This comment was preceded by the following exchange:

18. [132]

    These statements were as follows:

19. [133]

    The comments at Q217, Q218 and Q219 follow from the applicant’s argument (put in answer to questions) that the complainant consented to sexual intercourse by dancing with him and going to the cubicle with him.

20. [134]

    When the ERISP is listened to as a whole (and the transcript read, as an aide-memoire), it is plain that the police officers were trying to put the complainant’s version to the applicant to elicit his response. The applicant responded, in the main, non-responsively and argumentatively, which produced some of the police responses set out above. It was incumbent on the police officers to put these matters to the applicant as a matter of fairness. The trial judge’s direction was adequate to direct the jury that they could not use the statements by police officers as expert opinion evidence as to what constituted sexual assault.

21. [135]

    Further, the applicant’s trial counsel made forensic use of the ERISP in closing address and relied on the answers given by the applicant which he contended demonstrated his understanding of “no” in the context of sexual intercourse.

22. [136]

    I am not persuaded that the admission of these statements, in light of the direction given by the trial judge as to their use, resulted in any error or irregularity in the applicant’s trial.

23. [137]

    Mr Carroll accepted that the trial judge had directed the jury that it could not use the statements made by counsellors as expert opinion evidence but nonetheless contended that the trial judge ought to have excluded the evidence of their statements entirely. The way in which the issue was addressed has been set out above in the context of the background to ground 4. It is plain from the recitation of the background that the trial judge was alive to the risk of potential prejudice and anxious to ameliorate it while preserving the applicant’s opportunity to use the comments for his own forensic advantage.

24. [138]

    The applicant’s trial counsel had foreshadowed the case which was eventually put: namely, that the complainant did not consider what had happened at the Stonewall Hotel to amount to sexual assault until she was, in effect, coached by the sexual assault counsellors at 1800RESPECT, who took advantage of her suggestibility by putting words into her mouth, which became her complaint to police and, eventually, her evidence at the trial. This aspect of the applicant’s case was founded on the discussions between the complainant and the counsellors about what had occurred and what it amounted to (and explains why the applicant’s trial counsel wanted these discussions to be in evidence).

25. [139]

    The applicant’s trial counsel put this case to the complainant in cross-examination and suggested:

    1. (1)

       that her description of “freezing” during the sexual assault was something which a counsellor had suggested to her in one of the 1800RESPECT calls (which she denied);

    2. (2)

       that she did not consider that she had been sexually assaulted until she spoke to counsellors at 1800RESPECT on 20 May 2019;

    3. (3)

       that she did not think that she had been sexually assaulted when she spoke to others about what had happened at the Stonewall Hotel; and

    4. (4)

       that when she spoke to police on 27 May 2019, she was still uncertain about whether she had been sexually assaulted.

26. [140]

    The applicant’s trial counsel said in closing address:

27. [141]

    The case which the applicant wished to put carried with it some risk. By insisting on, or concurring with, the admission of the 1800RESPECT audio recordings and associated transcripts (subject to the errors which are the subject of ground 4), the applicant’s trial counsel was putting before the jury the views of the counsellors who spoke to the complainant when she was reporting what had happened. It was a necessary part of the applicant’s case that he did so since that evidence was an integral part of the applicant’s case that the complainant had been actively persuaded by the counsellors that what happened was sexual assault, when that was not the complainant’s assessment of the situation. The applicant’s trial counsel’s extensive reliance on these recordings plainly arose out of considered forensic decisions which he made in order to advance the applicant’s interests. These were rational decisions which had at least the potential to advance the applicant’s case in the best manner reasonably available.

28. [142]

    I am not persuaded that the admission of the opinions of the counsellors, in light of the direction given by the trial judge, amounted to an error or irregularity in the applicant’s trial.

29. [143]

    As set out above, the prosecutor asked the applicant whether he was homosexual. The question was rejected when objection was taken and the direction set out above immediately given to the jury.

30. [144]

    I understood Mr Carroll to submit that the prosecutor’s question was gratuitous and so prejudicial that even its immediate rejection and the judge’s direction were insufficient to cure any prejudice. He also submitted:

31. [145]

    One of the difficulties with Mr Carroll’s submission is that it was accepted that the applicant, a male, had had (hetero)sexual intercourse with the complainant, a female, in a male cubicle of a gay nightclub. In these circumstances, the inference was available that the applicant had gone to the Stonewall Hotel to have sexual intercourse with a woman who had attended a gay night club, believing that she was relatively safe because the usual attendees of such a club would be gay men (and therefore not sexually attracted to her). By taking her to the cubicle of the male toilets, he was taking her to a location where sexual intercourse (between gay men) could be expected to take place. Thus, far from suggesting that the applicant was homosexual, the inference, based on the surrounding circumstances, was to the contrary and was, to an extent, established by his preference in having sex with the complainant rather than any one of the men on the dance floor who may have attended the venue, and been available to the applicant, for the purposes of sex.

32. [146]

    In this context, the question was not gratuitous. However, in my view, the asking of the question did not add to the inference, which arose from the evidence in any event. The trial judge’s direction was, in any event, given promptly and was more than sufficient to address any homophobic prejudice which the jury may have otherwise allowed to affect its decision-making.

33. [147]

    The question was objected to and the direction was accepted to be sufficient by the applicant’s trial counsel. No discharge of the jury was sought. Nor was any such application warranted. I do not consider that there was any risk of a miscarriage of justice as a consequence of the prosecutor asking this question, particularly as the question was immediately objected to, rejected and the subject of a direction.

34. [148]

    As set out above, the prosecutor in closing address implied that the applicant had a tendency to go to nightclubs for the purpose of sexual intercourse. The words used in the address which could be seen as an invitation to engage in tendency reasoning are highlighted in the extract above. What made the portion of the closing address amount to such an invitation was the reference to the applicant having had sex there the previous week and the words, “[t]his is a man who thinks he can go to … a nightclub … to have sexual intercourse.”

35. [149]

    The trial judge immediately directed the jury that they were not to engage in tendency reasoning. Her Honour gave an anti-tendency direction in a relatively standard form. No application for discharge was made. I am not persuaded that any miscarriage of justice arose as a result of this aspect of the prosecutor’s closing address, having regard to the way in which the trial judge addressed it.

36. [150]

    Mr Carroll submitted that, when all the (alleged) irregularities in ground 5 are considered cumulatively, a substantial miscarriage of justice has been occasioned and that this Court ought quash the applicant’s convictions. It will be evident from my reasons that I do not consider any of the matters which comprised the grounds, all of which were the subject of timely directions given by the trial judge, had any effect on the fairness of the applicant’s trial or could reasonably be supposed to have had any effect on the verdicts returned by the jury. I am unpersuaded that any of these matters caused the applicant to lose a real chance of acquittal: Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32] (Bellew J, Hoeben CJ at CL and Hidden AJ agreeing).

Leave

1. [151]

   As referred to above, all grounds require leave pursuant to r 4.15 of the Rules as the applicant’s trial counsel endorsed the approach taken by the trial judge. Because of the detailed consideration which all grounds have received, and to ensure finality, I propose that leave under r 4.15 and leave to appeal be granted.

Proposed orders

1. [152]

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

   1. (1)

      Grant leave to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [153]

   HARRISON J: I have had the significant advantage of reading in draft the detailed reasons of Adamson JA with which I agree.

3. [154]

   WEINSTEIN J: I agree with Adamson JA and the orders proposed by her Honour.