Bandao v R; Bruce v R

1. [1]

   HOEBEN CJ at CL:

2. [2]

   The wording of the offences was that each of the applicants had engaged in four counts of sexual intercourse on or about 21 June 2015 with the complainant (AB) without her consent, knowing she was not consenting and for a period of time after the commission of the offence, depriving the complainant of her liberty. As indicated, Bruce had a fifth count on the indictment not referable to Bandao.

3. [3]

   Each of the first four counts on the indictment had an alternative which did not contain the element of deprivation of liberty.

4. [4]

   The Crown case was that the applicants and Billy Joe Alcazar (Alcazar), as part of a joint criminal enterprise, sexually assaulted the complainant. The acts of penetration were particularised as follows:

5. [5]

   The trial commenced on 21 March 2017 before Judge Colefax SC DCJ and a jury of twelve. Mr Lawrence appeared on behalf of Bandao and Mr Trevallion appeared on behalf of Bruce. At the conclusion of the evidence, his Honour entered a verdict by direction in favour of the applicants on Count 4. The jury retired to consider their verdicts on 28 April. On 2 May 2017 the jury returned verdicts of not guilty in respect of Counts 1, 2 and 5. The jury returned a verdict of not guilty for each applicant in respect of Count 3, but found the applicants guilty of the alternative to Count 3.

6. [6]

   The terms of the alternative count were:

7. [7]

   Bandao seeks leave to appeal from this conviction on the following grounds:

Ground 4 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Counts 1 and 2.

1. [8]

   Bruce seeks leave to appeal from this conviction on the following grounds:

CROWN CASE AND EVIDENCE

1. [9]

   The complainant went with a friend, Patricia Tejada, to premises in Blacktown where Bandao lived with his parents. Bandao was Ms Tejada's boyfriend. Bandao, Ms Tejada, Bruce and Alcazar collected the complainant from her house where she lived with her parents and took her to Bandao’s home.

2. [10]

   On the way they purchased some alcohol, which they later consumed. Both the complainant and Ms Tejada became intoxicated. At about 10pm Ms Tejada began to feel unwell as a result of the consumption of alcohol. It is common ground that the complainant accompanied her to a small outside toilet room where Ms Tejada commenced vomiting. The complainant also began vomiting soon after. Some time later, Bandao assisted Ms Tejada to leave the toilet room and seated her on grass in the backyard.

3. [11]

   It was the Crown case that at that point Alcazar, Bruce and Bandao entered the small toilet room wherein the acts alleged in the indictment were said to have taken place. The Crown asserted that before the sexual acts occurred, the complainant had been deprived of her liberty, either by one or more persons putting their hands on her physically to restrain her, or by one or more of them blocking the exit from the toilet.

4. [12]

   It was alleged that at the time of the sexual assaults a number of items of the complainant’s clothing and hair extensions were forcibly removed. It was the Crown case that following the offences, the complainant was placed in Bruce’s car and driven home by Bandao with Bruce and Alcazar also in the car.

5. [13]

   The case put forward on behalf of Bandao was that he did not commit the act alleged in Counts 1 and 4 and was not present for the commission of the acts in Counts 2 and 3. His case was that he was outside the toilet room providing assistance to Ms Tejada and only approached the toilet room on two occasions – the first to assist Ms Tejada to the grassed area and the second to say to Alcazar and Bruce “this is not how we do things”.

6. [14]

   Bruce’s case was that he did not commit the acts alleged. He did, however, admit that he was in the toilet room kissing the complainant a short time before the alleged sexual offences occurred.

The complainant’s evidence

1. [15]

   The complainant commenced her evidence on 23 March and it was completed on 28 March 2017.

2. [16]

   The complainant accompanied Ms Tejada to the toilet room at the rear of the premises because Ms Tejada had begun to feel ill. The complainant then became ill herself and commenced to vomit. She became aware that there were other people in the toilet room. She was able to identify one of those persons as Alcazar.

3. [17]

   She felt her body being touched and was picked up and prevented from leaving the toilet room. She continued to try to push these people away. She was saying “No”. One of them said “You know you like it”. She denied that Bandao had come to the door of the toilet room and said “This is not how we do things”.

4. [18]

   When asked what happened next the complainant said “I don't really recall a lot of what happened in the toilet. I just remember finding myself outside on the ground”. There was evidence from a pharmacologist that the complainant’s blood alcohol content at 10pm on 21 June 2015 was most likely 0.174 grams of alcohol in 100ml of blood and the range was between 0.122 and 0.242. The most likely concentration at 11pm was 0.158. The pharmacologist’s evidence was that at blood alcohol concentrations from 0.14 percent and certainly above 0.2 percent, memory fragmentation, whereby a memory of an event is only partial, can occur. The pharmacologist said that memories can be revived or triggered if memory has been fragmented.

5. [19]

   The complainant was able to provide some detail. She was held. Her bra but not her shirt was removed. Her jeans and underpants were removed. As she sat, her mouth was penetrated by a penis. By the evidence of skin colour the complainant was prepared to accept the possibility that Alcazar had done this act. Alcazar denied that his penis was in the complainant’s mouth. The complainant said that she was bent over and her vagina was penetrated from behind.

6. [20]

   After the complainant refreshed her memory from her police statements, she gave evidence that she saw “glimpses of specific faces behind me”. She first saw Alcazar, then Bandao and then Bruce. She said that there were two males “which I have a hard time distinguishing. They were trying to penetrate my vagina .... with fingers, hands, and I kept saying – l was saying ‘it hurts. It hurts’”. She was “pretty sure” that these two males were Bandao and Alcazar (AB 642).

7. [21]

   After the complainant again refreshed her memory from her police statements, she gave evidence that Bruce had said “She just sucked my dick”. When cross-examined by counsel for Bandao, she “vaguely” remembered that when Alcazar had his hands underneath her underpants she had glimpsed Bandao at the door of the toilet room. After that she turned away and she did not know whether Bandao had left the toilet room.

8. [22]

   In cross-examination the possibility that Alcazar had committed all of the sexual acts was put to the complainant. She could not be sure whether he had because she was intoxicated. She accepted that she could not be sure whether Bandao had put his fingers in her vagina.

9. [23]

   In further cross-examination by counsel for Bandao the complainant was asked “At the time you were sexually assaulted that is with the penis in your mouth [Bandao] wasn't there?”. She answered “I guess not, no”. She said that she did not know whether Bandao was present when there was penile-vaginal intercourse occurring.

10. [24]

    The complainant was pretty sure that Bruce was not in the toilet room when she saw him. “It [the toilet room] was really small”. She was not sure that when she saw Bruce, it was when sexual activity was occurring in the toilet room. It was put on behalf of Bruce that before any indecent acts were performed in the toilet room she and Bruce had kissed. She denied that.

11. [25]

    The complainant described crawling out of the toilet room although in cross-examination she accepted that Bandao had put on her underpants. Bandao walked her to a car. The complainant gave evidence of sitting in the back seat of a car while Bandao drove. Alcazar and Bruce, at different times on the trip, indecently assaulted her. Bandao said “stop it”. Bandao took her back to her house. The complainant gave evidence that she specifically remembered that there was a stop when Bruce and Alcazar changed seats in the car. Alcazar denied that he was touching her and that Bandao told him to stop.

12. [26]

    The complainant was seen at Westmead Hospital by Nurse Newland. Ms Newland examined the complainant at 3.30am on 22 June 2015, approximately five hours and ten minutes after the assault. During the examination the complainant was accompanied by her mother and by a sexual assault counsellor.

13. [27]

    The history taken by Nurse Newland from the complainant was that her vagina had been digitally penetrated by four men while in the toilet room. All four men then had penile-vaginal intercourse with her. She named Bandao, Bruce and referred to the unknown male as “Mr Laurean”. She denied penile-oral penetration. She complained of pain in the genital area and an abrasion was located on her vaginal area.

14. [28]

    The complainant was unsure whether she had nominated Mr Hradavec as one of her assailants but accepted that she had told police that he was an assailant. Senior Constable Boyd confirmed that the complainant had nominated Hradavec, as well as Alcazar, Bruce and Bandao, as taking turns to assault her. Her statement recorded that she had been assaulted by four males.

The recorded conversation

1. [29]

   Mr Trevallion, counsel for Bruce, commenced cross-examining the complainant on the afternoon of 28 March. It was put to the complainant that she had met with Ms Tejada on 2 July 2015 at Parramatta. The complainant agreed that she had. It was put to her that various details about the evening of 21 June 2015 were supplied to her by Ms Tejada. The complainant agreed. Unknown to the complainant, Ms Tejada had recorded this conversation.

2. [30]

   It was during the complainant’s cross-examination by Mr Trevallion that it was revealed that Ms Tejada had recorded the conversation which took place on 2 July 2015. The complainant participated in a further recorded interview with police the following day, 3 July 2015. The complainant admitted that she had lied to police on 3 July 2015 when she denied meeting anyone from the party, particularly Ms Tejada.

3. [31]

   In the cross-examination by Mr Trevallion, before the existence of a recording was revealed, the complainant had been asked about her meeting with Ms Tejada. In response to the manner in which she had spoken with Ms Tejada, the complainant said:

4. [32]

   In the recorded conversation Ms Tejada told the complainant that Bruce had said “She sucked my dick, brah”. That was an assertion, allegedly by Bruce about which the complainant informed the police on 3 July 2015. The complainant’s evidence, in relation to that was “I kinda remember that, but I don’t remember who it was” (T 406.10). She agreed that she obtained that information from Ms Tejada although she said that she was not wholly dependent on Ms Tejada for identifying whose voice it was.

5. [33]

   In the recorded conversation there was reference to the drive back to the complainant’s house. On the following day, 3 July 2015, the complainant informed police about what had occurred during that drive. She explained at trial that Ms Tejada had refreshed her [the complainant’s] memory on that issue.

6. [34]

   Most significantly, the recorded conversation included the complainant telling Ms Tejada that Bandao had not involved himself in any criminality (T 456.23). Later in the trial, the complainant gave evidence that this was not correct and that she had said this because Bandao was Ms Tejada’s boyfriend.

7. [35]

   In the recorded conversation the complainant also referred to Alcazar’s penis having been in her mouth.

8. [36]

   The complainant had listened to the recorded conversation before she was further cross-examined by counsel for Bandao. Her explanation of her denials in the recorded conversation of Bandao’s involvement in the offending was the subject of a warning pursuant to s 165 of the Evidence Act 1995 (NSW). That warning was given not only in the course of her evidence (AB 1006) but also in his Honour’s summing up.

9. [37]

   After the complainant heard the recorded conversation when she was being cross-examined by Mr Lawrence, on behalf of Bandao, she was asked whether what she told Ms Tejada in the recorded conversation was said honestly. The cross-examination then proceeded as follows:

10. [38]

    The effect of the cross-examination of the complainant by Mr Trevallion, on behalf of Bruce, was that much of the detail and additional information which she gave to police in her statement of 3 July had come from what she had been told by Ms Tejada the day before. The complainant did say, however, that she was not entirely dependent on what she had been told by Ms Tejada and had some memories of these events herself. She accepted that Ms Tejada had filled in some gaps in her recollection of what had happened on the night of the assault.

Alcazar

1. [39]

   Billy Joe Alcazar gave evidence. He was in custody after pleading guilty to three counts of sexual intercourse with the complainant without her consent and knowing she was not consenting in the company of Bandao and Bruce. He was serving a total sentence of 6 years and 6 months imprisonment. He had received discounts on his sentence for his guilty plea and his past assistance to police. He received a further discount for future assistance by giving evidence in this trial. Because of the fragmented nature of the complainant’s recollection, the Crown case depended upon the evidence of Alcazar.

2. [40]

   DNA evidence established that Alcazar had ejaculated inside AB’s vagina. Bandao, Bruce and Hradavec were excluded. Alcazar said that everyone except Hradavec was drunk and that the complainant and Ms Tejada were “spewing” in the toilet. Bandao took Ms Tejada from the toilet room. He helped her up and she walked out and sat on grass between the table, where the drinking had occurred, and the toilet room.

3. [41]

   Alcazar and Bruce went into the toilet room. They did not speak before they entered and Alcazar could not explain why they entered. The complainant was standing, bent over and vomiting into the toilet. Alcazar and Bruce were close to each other. The toilet room door was ajar.

4. [42]

   Alcazar’s evidence about what then happened is important. The following are relevant extracts:

5. [43]

   Alcazar gave evidence of the purchase of alcohol and soft drinks in the lead up to the gathering at Bandao’s house on 21 June 2015. He said that he had smoked cannabis that evening and was “stoned”.

6. [44]

   In the course of his evidence in chief, the Crown successfully made an application, pursuant to s 38 of the Evidence Act, to cross-examine him. Alcazar agreed that Bruce was in the toilet room and was rubbing the complainant’s vagina. In cross-examination by Mr Lawrence, Alcazar insisted that he saw Bandao in and coming from the toilet room. He denied that Bandao said to him “this is not how we do things” or “I have a heart”. He denied that it was possible that Bandao had said anything like that. He denied under cross-examination by Mr Trevallion that after the complainant and Bruce had kissed, Bruce left the toilet room. His denials to this effect were expressed in forceful terms.

Evidence of Mr Hradavec

1. [45]

   Mr Hradavec had known Bandao for about six or seven years and they were “good friends”. Although he had known Bruce for about a year, he was not a friend and he would only see him every now and again. He had known Alcazar for six or seven years from school, but did not consider him to be a friend. He had known Ms Tejada for a few months and knew that she was Bandao’s girlfriend. Mr Hradavec met the complainant for the first time on 21 June 2015.

2. [46]

   Mr Hradavec’s evidence was that Bandao invited him to come to his house on the evening of 21 June 2015. When he arrived, he brought a bottle of tequila. At the time of his arrival he saw Bandao, Bruce, Alcazar, Ms Tejada and a Mr Lim (Mr Lim was the complainant’s boyfriend at the time). On his arrival he observed that everyone except Mr Lim appeared to be affected by alcohol.

3. [47]

   Mr Hradavec saw the complainant and Ms Tejada walk to the outside toilet room. Bandao took Ms Tejada from the toilet and they walked towards him. Ms Tejada sat on the grass and Mr Hradavec remained near her. He did not have a view of the toilet room from that location. Bandao left Ms Tejada on the grass but Mr Hradavec did not see where he went. Mr Hradavec could not say where Bruce or Alcazar were at that time.

4. [48]

   While Mr Hradavec was with Ms Tejada, Mr Lim came into the back yard and said “where is everyone?”. Mr Lim spoke to Mr Hradavec and then left. Mr Hradavec did not tell Mr Lim that the complainant was in the toilet room.

5. [49]

   Mr Hradavec was cross-examined, pursuant to s 38 of the Evidence Act, by the Crown. During that cross-examination he could not explain why he did not tell Mr Lim that the complainant was in the toilet room. He could not remember whether he said to Mr Lim “sounds like she’s having fun” or “are you going to get your girlfriend?”. He went into the house for a glass of water for himself and for Ms Tejada, went outside and then went back inside the house with Ms Tejada.

6. [50]

   Mr Hradavec did not remember “exactly where anyone was”, although he remembered “everyone was kind of in the backyard walking around”. He remembered that the complainant was in the backyard but could not remember exactly where. He did not remember Bandao being with him and Ms Tejada while she was on the grass or when he brought her a glass of water.

Evidence of Mr Lim

1. [51]

   Denis Lim had been seeing the complainant for about a week up to 21 June 2015. He went to the address where the complainant was that night to pick her up and take her home. He had been in contact with the complainant at about 9pm that night. The complainant and Ms Tejada met Mr Lim outside. He spoke to the complainant who seemed happy and excited and a little drunk. When he offered her a lift home she wanted to stay.

2. [52]

   Mr Lim only saw the complainant consuming alcohol after Mr Hradavec arrived with his bottle of tequila. He later saw the complainant go to the outside toilet room with Ms Tejada. When he was cross-examined by the Crown, pursuant to s 38 of the Evidence Act, he agreed that he had told police that he had seen the complainant “get drunk” and vomit before she went to the toilet.

3. [53]

   Mr Lim said that the complainant and Ms Tejada went inside and shut the door to the toilet room. He then heard the noise of vomiting from the toilet room. At that time the males were sitting around the table and he stayed with them. When one of the males said that he wanted to leave and asked Mr Lim to move his car, he did so. He did not remember seeing Bandao follow him to the gate as he left to move his car and he did not see Bandao give Ms Tejada a glass of water.

4. [54]

   When Mr Lim came back after moving his car, he saw only Ms Tejada and Mr Hradavec. He spoke to Mr Hradavec and asked him where everyone was to which Mr Hradavec responded that he did not know. When it was put to him that Ms Tejada had given evidence that Mr Hradavec had asked him “what about your girlfriend” and that he had replied “looks like she’s having fun”, Mr Lim said that he did not recall such a conversation. Mr Hradavec in his evidence also said that he did not remember such a conversation.

5. [55]

   Mr Lim said that he watched a movie that was playing on the television in the living room through a window but did not see Bandao, Alcazar or Bruce inside the house. It was at about this time that his aunt telephoned him to ask him to return the car and he had to leave.

6. [56]

   When Mr Lim was cross-examined, pursuant to s 38 of the Evidence Act by the Crown, he agreed that he had told the police “I didn’t say goodbye to the complainant as she was in a bad state”.

7. [57]

   According to the complainant, Mr Lim had sent her a message while she was still at Bandao’s house to the effect of “let me know if you’re OK”. The complainant later accepted that Mr Lim had sent her a text in which he had indicated that he was angry. The complainant said that this was because she did not go home with him and denied that it was because she was in the toilet room with Alcazar.

8. [58]

   Mr Lim rejected the proposition that he had become angry because the complainant was in the toilet room with another man. He sent her an “angry text” but not because he had seen her in the toilet room with another man. The texts were not in evidence. The police did not examine the mobile telephones of the complainant or Mr Lim or ask about the content of the text.

Evidence of Ms Tejada

1. [59]

   Ms Tejada had been dating Bandao for a few months before 21 June 2015. She gave evidence of the gathering at his house. She had consumed a lot of alcohol and when she commenced to feel ill, she and the complainant went to the outside toilet room where both of them vomited.

2. [60]

   Bruce went into the toilet room. Bandao helped her leave the toilet room. When Ms Tejada left, the complainant had her head leaning over the toilet and she continued to vomit. Ms Tejada remembered that the door to the toilet room was closed and that the light was on while she was in there. When she left the toilet room , she sat on the grass. The toilet room door was still closed and Mr Hradavec and Bandao were seated with her.

3. [61]

   Ms Tejada gave evidence that she heard the complainant moaning because the complainant was having intercourse. On further questioning, it was clear that this was speculation on her part. She did not know where Alcazar was. Mr Lim left the premises just after she came out of the toilet room and sat on the grass.

4. [62]

   She saw Bruce leave the toilet room and sit on a chair near her. Bruce told her “she sucked my dick”. She remembered being given a glass of water but could not remember by whom. She said that she heard Alcazar leave the toilet room with the complainant. She did not see them because she was still “sick on the ground”. She heard Bandao say he was going to drive the complainant, Bruce and Alcazar home. She then went to Bandao’s room where she “just passed out”.

5. [63]

   That evidence was somewhat different to what Ms Tejada told the police in her statement. She was cross-examined to that effect. In her statement she had Alcazar and Mr Hradavec looking after her while she was seated on the grass and while the complainant was still in the toilet room. She also told police that Bandao left her seated on the grass while the complainant was still in the toilet room and before Bruce left the toilet room. She told police that Bandao “went to the bathroom to get the complainant out”. She was not looking and could not say whether Bandao in fact went into the toilet room. Ms Tejada confirmed the truth of what she had told the police in that statement and admitted that her memory was bad and she could not remember whether Bandao had left her seated on the grass and would not be able to say for how long he had left her. Her memory was vague and hazy from the time she commenced being sick until she went to sleep that night.

6. [64]

   In cross-examination by Mr Lawrence Ms Tejada said that Bandao, after leaving to go to the toilet room while she was seated on the grass, came back and was with Mr Hradavec and Mr Lim and that Mr Lim had left soon after.

7. [65]

   Ms Tejada was extensively cross-examined by Mr Trevallion. She accepted that she had been “pretty drunk” and was still “a bit drunk” when she gave her police statement the following morning. Her memory of the incident generally and when giving her police statement was affected by alcohol. Her memory had not improved.

8. [66]

   Ms Tejada confirmed that in her police statement she had said that she believed Bruce to have been in the toilet room because Alcazar and Mr Hradavec were looking after her. She admitted confusing the voices of the males. She was sure that Bruce said “she sucked my dick” but did not remember where Alcazar was at that time. When asked whether Bruce might have said “she sucked his dick”, Ms Tejada said that she did not remember but denied that she might have been inaccurate over the exact words which he used.

9. [67]

   Ms Tejada spoke to the complainant on 2 July 2015 in the recorded conversation about Bruce saying “she sucked my dick”. When he said that Bandao was present.

The Crown’s approach to the recorded conversation

1. [68]

   As well as setting out the relevant evidence, it is also necessary to set out how the trial proceeded.

2. [69]

   It was common ground that during the cross-examination of the complainant when adjournments occurred, his Honour gave the usual warning to her not to talk to anybody about the evidence she was giving while she was being cross-examined. His Honour specifically warned her not to talk to the Crown or anyone associated with the Crown.

3. [70]

   As already indicated, it was only while Mr Trevallion was cross-examining the complainant, and after counsel for Bandao had completed his cross-examination of the complainant, that the fact that the conversation with Ms Tejada of 2 July 2015 had been recorded and a copy of that recording was in the possession of Mr Trevallion, was revealed.

4. [71]

   On the morning of 29 March 2017 the Crown, in the absence of the jury, made the following submissions to his Honour:

   1. (1)

      That Ms Tejada had recorded her conversation with the complainant of 2 July 2015 in contravention of s 7 of the Surveillance Devices Act 2007 (NSW) (SDA).

   2. (2)

      That Bruce’s legal representatives possessed that recording, contrary to s 12 SDA.

   3. (3)

      That the derivative use of that recording as the basis for cross-examination amounted to publication of that conversation, contrary to s 11 SDA.

5. [72]

   The Crown submitted:

6. [73]

   The Crown submitted that authorities existed which supported “the proposition that a cross-examiner in a criminal trial may not use in the cross-examination material, let’s assume for present purposes illegally obtained” (T229). The Crown called for the following items as if on subpoena:

   1. (1)

      Bruce’s mobile phone.

   2. (2)

      Any record of any conversation between Ms Tejada and the complainant held by Bruce’s solicitors.

7. [74]

   Ms Tejada gave evidence on the voir dire as to the circumstances of the recording of the conversation with the complainant and the means by which Bruce came into possession of that recording. She was granted a certificate under s 128 of the Evidence Act in respect of the making of the recording.

8. [75]

   On the voir dire Ms Tejada confirmed making the recording without the complainant’s knowledge. Ms Tejada said that she had made her statement of 29 March 2017 (which dealt with the meeting with the complainant on 2 July 2015) because she did not believe that Bandao had done anything wrong and she wanted to show the recording to his sister and his parents. She gave evidence that her reason for the recording was to record, if possible, the complainant saying something to confirm Bandao’s innocence. Ms Tejada was unaware that she had done anything wrong.

9. [76]

   Having heard submissions from the Crown but not from defence counsel, his Honour granted the Crown permission to issue a subpoena to Bruce’s solicitors for the production of any document or record relating to the conversation. Subsequently, on the morning of 30 March 2017, the Crown advised the court that the retrospective consent of the complainant had been obtained in respect of the recording, that he had obtained a copy of it and that the Crown would make arrangements for a transcript of the recording to be produced. Mr Lawrence, on behalf of Mr Bandao, indicated that until 29 March 2017 Bandao’s legal representatives were unaware of the existence of the recording.

10. [77]

    It was agreed between the parties that following the completion of Mr Trevallion’s cross-examination of the complainant, Mr Lawrence would have leave to further cross-examine her following which the Crown could have a conference with the complainant and re-examine her in respect of the recording.

11. [78]

    Further cross-examination of the complainant by Mr Trevallion did not recommence until 3 April 2017 and concluded the same day. His Honour gave another warning to the complainant not to discuss her evidence with anyone (T414). Mr Lawrence commenced his further cross-examination on 4 April 2017. It focused upon the conversation with Ms Tejada of 2 July 2015. Parts of the recorded conversation were played to the complainant and she was questioned about them.

12. [79]

    In the course of that cross-examination the following occurred:

13. [80]

    Cross-examination continued in the same way with parts of the recorded conversation being played to the complainant and her being asked questions about them.

14. [81]

    His Honour then intervened and the following exchange took place:

15. [82]

    After completing the further cross-examination and after a short adjournment, Mr Lawrence and Mr Trevallion made an application for a permanent stay of proceedings. His submissions were:

16. [83]

    Following an adjournment, his Honour made the following proposal:

17. [84]

    Ultimately Mr Lawrence took the position that should his application for a permanent stay fail, a direction pursuant to s 165 ought to be given. He made no application to discharge the jury nor did Mr Trevallion.

18. [85]

    The Crown in his submissions did not resile from the position taken earlier in respect of the recording, i.e. he asserted that Bruce’s lawyers were obliged to put the Crown on notice of the existence of the recording and argue its admissibility pursuant to s 138 of the Evidence Act 1995 (NSW) as a precondition of its use in cross-examination. In respect of giving the recording to the complainant, the Crown submitted:

19. [86]

    His Honour declined to grant a permanent stay holding that while Bandao had sustained a “significant forensic disadvantage … in circumstances which should not have occurred” which brought it “close to the edge of circumstances for a permanent stay, on balance the unfair prejudice can be addressed by a brief direction to the jury that the evidence may be unreliable in accordance with section 165 of the Evidence Act today and a more detailed direction to the jury in the summing up” (Permanent Stay judgment at pp 5-6).

20. [87]

    Before the trial resumed his Honour gave a direction to the jury in relation to the evidence of the complainant elicited by Mr Lawrence in his further cross-examination:

21. [88]

    At the conclusion of the evidence in his closing address, the Crown sought to explain the inconsistencies and difficulties in the complainant’s evidence. Mr Lawrence in his closing address emphasised what he described as the complainant’s dishonesty and attempts to hide the truth from the jury. In the course of that address, he said:

22. [89]

    In his summing up his Honour gave an unreliability warning in respect of Alcazar’s evidence. It was in that context that his Honour went on to say:

23. [90]

    His Honour then summarised the complainant’s evidence as to oral intercourse (being the subject of count 1), her statement to Nurse Newland that there had been no such intercourse and her failure to complain about oral intercourse when she first spoke to police. His Honour continued his summing up as follows:

Ground 1 – The Crown prosecutor’s conduct in respect of the secret recording of the complainant so fundamentally affected the nature of the trial such as to cause a substantial miscarriage of justice.

1. [91]

   Counsel for Bandao referred to ss 27, 41, 43 and 45 of the Evidence Act as justifying the cross-examination of the complainant on the conversation between her and Ms Tejada recorded on 2 July 2015. He particularly relied upon s 43 which provides:

2. [92]

   Counsel for Bandao submitted that the importance of cross-examination to a fair trial has been long recognised. He relied on the observation of the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) in Lee v R [1998] HCA 60; 195 CLR 594 at [32] where the Court said:

3. [93]

   Counsel for Bandao referred to r 73 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Bar Rules) which prohibits conferring with a witness by his or her counsel while the witness is under cross-examination. He submitted that where there has been a departure from law in the running of a trial, observations such as those made by Kirby and Callinan JJ in Libke v R [2007] HCA 30; 230 CLR 559 at [48] were relevant:

4. [94]

   Counsel for Bandao submitted that the “train of decisions leading to a miscarriage of justice” began with the assertion by the Crown that cross-examination of a witness on the basis of illegally obtained material was contrary to authority. He submitted that no authority to support that proposition was put before the Court and that it was unlikely that any such authority existed. He submitted that any challenge to the propriety of cross-examination must overcome the broad power to cross-examine witnesses granted by ss 27 and 29 of the Evidence Act and in particular s 43. He submitted that the power to cross-examine on illegally or improperly obtained material was consistent with s 138 of the Evidence Act which contemplates that such material may be admissible despite its origins. He submitted that in circumstances where the defence has a right to silence, it is difficult to envisage how the failure to disclose illegally obtained material before cross-examination could produce an unfairness to the Crown especially given the ability to call for the document pursuant to s 45 of the Evidence Act.

5. [95]

   Counsel for Bandao submitted that providing a copy of the recorded material to the complainant undermined any possibility of the effective cross-examination of her. He submitted that in addressing the jury so as to reinforce the evidence of the complainant which was directly affected by the wrongful disclosure of the recorded material, the Crown amplified the effect of the wrongful disclosure of that material. Counsel for Bandao submitted that it was for those reasons that the Crown’s conduct constituted a radical departure from the requirements of a fair trial which in the overall circumstances gave rise to a substantial miscarriage of justice.

6. [96]

   Counsel for Bruce did not rely upon this ground of appeal.

Consideration

1. [97]

   The criticism of the Crown’s conduct of the trial in respect of the recorded conversation and its effect on cross-examination of the complainant was significantly overstated at trial and has been overstated in the submissions in support of this ground of appeal.

2. [98]

   Subsection 7(1) SDA states:

3. [99]

   Subsection 7(3) relevantly provides an exception to subsection 7(1)(b):

4. [100]

   It is clear from Ms Tejada’s evidence that she was not protecting her own lawful interests. She was seeking to protect the interests of Bandao. That conclusion is in accordance with the observations of this Court in Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 at [141]-[142] where Johnson J (with whom McClellan CJ at CL and Hislop J agreed) set out the limits of what is a “lawful interest” as that term was used in s 5(1) of the Listening Devices Act 1984 (NSW). While his Honour accepted that the term “lawful interest” is capable of a broad construction, having regard to its statutory context, his Honour concluded:

5. [101]

   Section 11(1) SDA prohibits the communication or publication of private conversations:

6. [102]

   Had counsel for Bruce been informed by Ms Tejada about what she remembered of the conversation she had with the complainant on 2 July 2015, there would be no contravention (s 11(3) SDA). Clearly, however, counsel for Bruce was using a transcript, or some kind of record of that conversation in his cross-examination (T214.28, T214.49, T215.27, T216.18).

7. [103]

   Section 11(2)(ii) provides an exception to s 11(1) if the communication or publication is made:

8. [104]

   Unlike s 13 of the now repealed Listening Devices Act (LD Act), the SDA contains no provision that deals with the admissibility of a conversation that was unlawfully recorded. It is s 138 of the Evidence Act that deals with the admissibility of unlawfully recorded conversations and evidence that is obtained as a consequence.

9. [105]

   Section 138 prohibits evidence obtained “in consequence of an impropriety or of a contravention of Australian law” (s 138(1)(b)). There must be a causal connection between the impropriety and the obtaining of the impugned evidence, even if only indirect: R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 at [86]; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 (Howie J) at [25]-[27]; R v Xie (No 4) [2014] NSWSC 500 (Johnson J) at [170]. Answers obtained through the use in cross-examination of an unlawful recording of a private conversation would clearly be within the prohibition created by s 138(1)(b). It is to this issue that the Crown referred when he spoke of authorities regulating the cross-examination of a witness based on material that had been unlawfully obtained.

10. [106]

    Section 43 of the Evidence Act, to which counsel for Bandao referred, merely allows cross-examination on a prior inconsistent statement. It is the answer that the cross-examiner wants. That answer is prima facie inadmissible because of s 138 of the Evidence Act if the cross-examiner was relying on unlawfully obtained information. It follows that the submission by the Crown at trial was an appropriate one.

11. [107]

    It should be noted that the complainant’s consent could not operate retrospectively to effect the lawfulness of the recording. If all of the principal parties to a conversation consent expressly or impliedly to a party to that conversation using a listening device to record the conversation, there is no breach of s 7 of the SDA. The consent of the parties or a principal party, however, must occur at the time of the recording, not subsequent to it. The consent must be to the listening device being so used.

12. [108]

    Although his Honour treated the complainant’s consent as the only matter that was necessary and allowed that consent to be retrospective (which was an error), it did not become a problem because the parties effectively agreed that, retrospectively, the recorded conversation could be used in the trial. The use of the recording thereafter occurred without objection by any of the parties. This was despite the fact that s 138 of the Evidence Act states that evidence obtained (or obtained as a consequence) through impropriety or a contravention of an Australian law “is not to be admitted” unless the balancing exercise set out in s 138(1) is undertaken. Accordingly, the approach taken at trial was appropriate if one interprets the words “is not to be admitted” as used in s 138 to mean “admitted over objection”. That is the approach which was followed in Dhanhoa v R [2003] HCA 40; 217 CLR 1 at [20]; Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at [26]; WC v R [2015] NSWCCA 52 at [20].

13. [109]

    On the basis of the above analysis, the following should have occurred at trial. In the absence of the jury Mr Trevallion should have sought a ruling under s 138 of the Evidence Act to rely upon the recorded conversation in his cross-examination. Whether his Honour would have granted that application is not known. From the comments made by his Honour at trial, and because of the probative value of the content of the recording to the applicants’ case, particularly that of Bandao, the likely result had his Honour balanced the appropriateness and inappropriateness of admitting the evidence, is that the recording would have been admitted into evidence.

14. [110]

    Had his Honour ruled in favour of admitting the evidence, it would have been open to the Crown to make an application to the court for access to the recording and if that were unsuccessful, take other steps such as issuing a subpoena with abridged time for service, for its production. All of that should have occurred before the commencement of any cross-examination of the complainant on the recorded conversation.

15. [111]

    In the circumstances which actually occurred, i.e. discovery of the existence of the recording during the course of Mr Trevallion’s cross-examination of the complainant, the Crown when he gained access to the recording should have advised defence counsel of his intention to make the recording available to the complainant. In the absence of their consent to do so, he should have made an application to that effect to the court. It was wrong for him not to do so and he was correctly criticised for that failure.

16. [112]

    That having been said, the fact that the complainant was cross-examined for a time in relation to the recording, which was illegally obtained, and that it was intended that counsel for Bandao would further cross-examine her gave rise to a level of unfairness towards her. It is for that reason that s 138 has been included in the Evidence Act, i.e. to enable a court to control the use of evidence unlawfully obtained in proceedings before it.

17. [113]

    Moreover, it is by no means certain that the complainant’s response to the cross-examination by counsel for Bandao would have been significantly different had she not had access to the recording. The evidence reveals that she did have some independent memory of the substance of the conversation. It was fairly obvious from her responses before she was made aware of the existence of the recording that there was an issue as to her honesty because parts of that conversation were played to her. On that issue, the following question and answer which predated her awareness of the recording is significant:

18. [114]

    Accordingly, it cannot be taken as an established fact that had the complainant not listened to the recording of the conversation during her cross-examination, her answers in re-examination would have been significantly different to those which she gave in cross-examination. It also needs to be kept in mind that had she not been aware of the recording, the concessions and admissions obtained during cross-examination would have been tempered to some extent by her evidence in re-examination as to her purpose or intention in deliberately providing Ms Tejada with false information concerning Bandao.

19. [115]

    As already indicated, even with knowledge of the content of the recording many of the complainant’s responses were quite favourable to Bandao, in particular, her equivocal statements about whether he was in the toilet room at the relevant time. The following evidence towards the conclusion of the complainant’s cross-examination by counsel for Bandao illustrates that:

20. [116]

    Given those concessions, it is not correct, as counsel for Bandao has submitted, that access by the complainant to the recording “undermined any possibility of an effective cross-examination” of her. On the contrary, not only were significant concessions obtained from that cross-examination but the apparent contradictions in her evidence were forcefully placed before the jury by counsel for Bandao in his closing address, and were also forcefully placed before the jury by his Honour in his summing up. His Honour, both at the completion of the complainant’s cross-examination and during his summing up, gave the jury a warning as to the reliability of the answers by the complainant to questions relating to what she told Ms Tejada. No application was made by counsel for the applicants for his Honour to add in any way to those warnings.

21. [117]

    There is no doubt that the cross-examination of the complainant in this case was important. There is no issue that cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of that person’s story. Moreover, there is clear authority that the conduct of a Crown Prosecutor in a criminal trial can of itself lead to a miscarriage of justice that can found a successful appeal against conviction (Beazley P, Schmidt and Button JJ in Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 at [272]). As Deane J noted in Whitehorn v R [1983] HCA 42; 152 CLR 657 at pp 663-664 whether there was a miscarriage of justice depends on whether, in the circumstances of the case, the applicant was denied a fair trial.

22. [118]

    What needs to be considered is the degree of the departure from proper process and the resulting unfairness. This was the approach of the majority (Gleeson CJ, Hayne and Heydon JJ) in Libke v R. There Gleeson CJ said at [2]:

23. [119]

    At [81] Hayne J said:

24. [120]

    At [134] Heydon J said:

25. [121]

    This Court in Hughes v R when considering whether the trial miscarriedbecause of the manner in which the Crown Prosecutor addressed the jurytook into account, not only the inappropriate comments made by the Crown,but the directions given by the judge as a consequence of those comments.Accordingly, the particular circumstances of this case require consideration.

26. [122]

    The trial judge accepted that the Crown had not given the recording to the complainant to deliberately thwart her cross-examination. Through listening to the recording, the complainant knew that her lack of honesty to Ms Tejada was clear and was able to counter the cross-examiner's questions through her knowledge of what she had said. To that extent she was forewarned. Nevertheless, an examination of those responses makes it clear that some were favourable to Bandao in that they raised significant credit issues concerning the complainant:

27. [123]

    It is also important to understand that, unusually for a case of this kind, it was not the complainant who was the primary witness for the Crown. The complainant freely admitted that her recollection was fragmentary as to the events of the night. The Crown’s prime witness was Alcazar whose evidence was that the applicants had committed offences along with him. In his summing up, the trial judge directed the jury that the Crown case as to counts 1, 2 and 3 depended on their acceptance of Alcazar’s evidence. In those circumstances, the complainant’s evidence was to be considered, not as standing alone, but for its capacity to support that of Alcazar. In his summing up, the trial judge said:

28. [124]

    In any event, the complainant’s evidence did not strongly assert Bandao’s involvement. Cross-examination on his behalf before she had knowledge of the recording and then after, revealed the limitations in her evidence. When one looks at the whole of the complainant’s evidence, although she was forewarned as to the contents of the recording, the overall effect on her cross-examination was not nearly as great as has been submitted. The complainant would also have had the opportunity to explain her reasons for denying Bandao’s involvement in re-examination. The jury also had before them what was actually said by the complainant in the recorded conversation. Not only did they have before them the strong warnings pursuant to s 165 of the Evidence Act by his Honour but they also had his Honour’s comments in the summing up concerning inconsistencies in the complainant’s evidence. Those comments were critical of that evidence and would have greatly reduced its perceived probative value.

29. [125]

    The Crown in his closing address accepted responsibility for making the recording available to the complainant. In the summing up, his Honour specifically referred to the Crown’s error in that regard. Nevertheless, it was well open to the Crown to urge upon the jurors that they pay particular attention to the evidence of the complainant in cross-examination by both defence counsel before she listened to the recording. Not only was that a permissible submission by the Crown, it was not the subject of any complaint by counsel for the applicants.

30. [126]

    I have concluded that although counsel for Bandao suffered a forensic disadvantage because the complainant had listened to the recording of the conversation before he conducted his further cross-examination, the effect of that disadvantage has been greatly overstated given the subordinate role of the complainant’s evidence in this trial. That is particularly so when one has regard to the strong warnings and qualifications concerning the complainant’s evidence given to the jury by the trial judge. Most particularly, the forensic disadvantage was not such as would amount to a miscarriage of justice or such as would involve significant unfairness to Bandao.

31. [127]

    This ground of appeal has not been made out.

Ground 2 – That a substantial miscarriage of justice occurred by reason of the failure of counsel for the applicant to apply to discharge the jury.

1. [128]

   This ground of appeal was only raised by Bandao and was not relied upon by Bruce.

2. [129]

   Counsel for Bandao relied upon the following statement of principle in R v Birks [1990] 19 NSWLR 677 at 685 where Gleeson CJ (with whom McInerney and Lusher JJ agreed) said:

3. [130]

   Counsel for Bandao submitted that the inquiry must be as to whether the decisions by counsel, when viewed objectively, were rational decisions (Gleeson CJ in Nudd v R [2006] HCA 9; 80 ALJR 614 at [9]) or whether they were choices that a competent counsel could fairly make (TKWJ v R [2002] HCA 46; 212 CLR 124 at [95] (McHugh J)).

4. [131]

   Counsel for Bandao submitted that when the application for a permanent stay had been refused by the trial judge, trial counsel should have recognised that the trial could not continue before the same jury. This was because the probative value of the exculpatory material in the recording was effectively destroyed by the Crown’s premature disclosure to the complainant. Counsel for Bandao submitted that the fact that such disclosure had not become apparent until halfway through trial counsel’s further cross-examination, produced both evidentiary and procedural disadvantages.

5. [132]

   Counsel for Bandao submitted that trial counsel’s decision to continue cross-examination following the disclosure that the complainant had heard the conversation, pointed to a lack of appreciation by him of the substantial and irredeemable nature of the prejudice which had been occasioned to Bandao. Counsel for Bandao noted that this decision was made following a firm indication by the trial judge that if an application were made to discharge the jury it would be granted. Counsel for Bandao characterised the decision not to apply for a discharge of the jury as objectively irrational and not a decision which competent counsel could fairly make.

Consideration

1. [133]

   In Matthews v R [2013] NSWCCA 187 at [62] this Court (Hoeben CJ at CL; Leeming JA and Beech-Jones J) set out the relevant principles applicable to a ground of appeal such as this:

2. [134]

   In accordance with that guidance, the decision not to make an application for a discharge could not on its own result in an unfair trial. Instead “what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial”.

3. [135]

   Moreover, even if the decision not to apply for a discharge appears to have not been carefully considered, was unwise or produced consequences which operated to the disadvantage of the applicant, the trial will not be unfair nor will there be a miscarriage of justice (TKWJ v R per Gleeson CJ at [16]-[17], McHugh J at [95]). An appellate court needs to ask could there be any reasonable explanation for the decision by trial counsel that is called into question by the ground of appeal (per Hayne J (Gummow J agreeing) at [107]).

4. [136]

   Statements to similar effect were made by this Court in Kees Langelaar v R [2016] NSWCCA 143 at [71] per N Adams J (Hoeben CJ at CL, Campbell J agreeing). There, her Honour said that “the ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open”. At [67] N Adams J noted what Gaudron J had said at [32] in TKWJ:

5. [137]

   In a retrial the complainant’s knowledge of the recorded conversation and her likely disavowal of what she said in that conversation as to Bandao’s presence, could not be altered. That would be a problem which would operate as much in a retrial as in this trial. There was always a risk, however, that in a retrial the complainant might better explain the apparent contradiction between what she said in the recorded conversation and her evidence that Bandao in fact was in the toilet room at the time when she was being assaulted. In this trial, in the context of the burden and standard of proof, the contradictions in the complainant’s evidence remained as favourable evidence for Bandao.

6. [138]

   As is clear from the exchanges between trial counsel for Bandao and his Honour, Bandao would be no better off in a retrial than he was in this trial. The complainant could be further cross-examined in any retrial but her knowledge of the contents of the recorded conversation could not be avoided. There would, however, be significant disadvantages for Bandao in a retrial. There would be a different Crown Prosecutor in a retrial who would be able to distance himself or herself from any claims of misconduct. In addition, the trial judge had made his opinions known. He had foreshadowed warnings under s 165 of the Evidence Act and it was apparent that he had formed an adverse opinion of parts of the complainant’s evidence.

7. [139]

   In those circumstances the decision of trial counsel for Bandao not to seek a discharge of the jury was a rational decision based on the particular circumstances of this trial. It could not be said that Bandao lost a chance of acquittal which was fairly open by his counsel’s failure to apply for a discharge of the jury.

8. [140]

   This ground of appeal has not been made out.

Ground 1 – The trial judge erred in failing to grant a permanent stay of proceedings.

1. [141]

   The trial judge delivered judgment on the application for a permanent stay on Tuesday, 4 April 2017. In the course of that judgment he made it clear that had the Crown sought the leave of the court to provide the recorded conversation to the complainant, that application would have been refused (Judgment 5.2). His Honour found:

2. [142]

   His Honour concluded that a very significant forensic advantage had been lost by Bandao. His Honour was not satisfied that such a disadvantage had been suffered by Bruce.

3. [143]

   His Honour stated the principles relevant to the application for a permanent stay as follows:

4. [144]

   His Honour expressed his conclusion in relation to the application as follows:

5. [145]

   Counsel for Bandao noted that his Honour had found a serious breach of ethics which undermined the ability of trial counsel for Bandao to cross-examine on an important issue in the trial. He submitted that it was not open to his Honour to propose the use of s 165 of the Evidence Act in the way in which he did, because any obligation to give a direction pursuant to that section was conditional on a request from either party (R v Stewart [2001] NSWCCA 260 at [41]). He submitted that the existence of that condition highlighted that the section was not intended to be used as it was in this trial.

6. [146]

   Counsel for Bandao submitted that the way in which the complainant had become aware of the contents of the recorded conversation enabled her to ambush trial counsel for Bandao in front of the jury. He submitted that it was impossible to assess the impact which that course of events might have had on the jury’s impression, both of the complainant and the effectiveness of the cross-examination of her by trial counsel for Bandao. He submitted that any direction under s 165 even on the application of counsel, could not address that procedural unfairness.

7. [147]

   Counsel for Bandao submitted that the inadequacy of the s 165 direction, which was actually given, was evident from the way in which the Crown was able to use the complainant’s evidence on this very point in his closing address. He submitted that it was for those reasons that his Honour was in error in failing to grant a permanent stay.

8. [148]

   In the alternative, counsel for Bandao submitted that even if it were not appropriate for his Honour to grant a permanent stay, his Honour should, of his own motion, have discharged the jury and not waited for an application to be made by one of the parties. Counsel for Bandao submitted that his Honour’s overriding obligation was to ensure a fair trial and the only way that could happen in the circumstances of this case, was for the jury to be discharged.

9. [149]

   Counsel for Bruce submitted that a permanent stay was the only effective remedy for what had occurred because her client had lost a forensic advantage which could not be regained by a discharge of the jury and the empanelling of a new jury. The damage which had occurred was irremediable. She submitted that in the particular circumstances of this case, Bruce had been denied a trial according to law and the resulting conviction had therefore involved a miscarriage of justice. This was because any subsequent trial would be affected by the consequences of the Crown’s conduct in making the complainant aware of the contents of the recorded conversation during cross-examination.

10. [150]

    Counsel for Bruce submitted that while the power to grant a permanent stay is discretionary and will only be used in exceptional circumstances in criminal proceedings, the touchstone of every case is fairness. In this case, the events which had occurred went to the root of the trial and were “of such a nature that nothing that a trial judge could do in the conduct of the trial could relieve against its unfair consequences” (Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 at [34]).

11. [151]

    Counsel for Bruce submitted that even though the trial judge had minimised the conduct of the Crown as a “mistake” the effect of this “mistake” was to ambush counsel for Bandao in his cross-examination and gave the jury the impression that the behaviour of the Crown was explainable in the circumstances. Counsel for Bruce noted that it was impossible to assess the impact which the course of events in this trial must have had on the jury so that any s 165 direction could not address the unfairness which had resulted.

Consideration

1. [152]

   The grant of a permanent stay of proceedings is an exceptional remedy. In Jago v District Court of NSW Mason CJ said at [34]:

2. [153]

   The test was set out in R v Edwards [2009] HCA 20; 83 ALJR 717 by the Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [23]:

3. [154]

   Beazley JA (with whom R A Hulme and Garling JJ agreed) said in Calleija v R [2012] NSWCCA 37:

4. [155]

   The review of a refusal to grant a stay of proceedings depends on the principles concerning the review of discretionary judgments set out in House v The King [1936] HCA 40; 55 CLR 499 at pp 504-505. This is clear from what was said in Medich v R [2015] NSWCCA 281 at [136]-[137] per Bathurst CJ (Beazley P and Hidden J agreeing). Because this ground of appeal appears in an application for leave to appeal after trial, what arises for consideration is not only whether, on the material before the trial judge when the applications were refused, there was error but also whether there is error in the light of what subsequently occurred (Hughes v R).

5. [156]

   The application for a permanent stay, on behalf of Bandao, was based on the complainant having access to the recorded conversation because that had “taken away any effective cross-examination” from trial counsel. It included that the complainant had had access to, during her examination-in-chief and cross-examination, transcripts of her own interviews with police despite there having been no objection by either defence counsel.

6. [157]

   As can be seen from the consideration of Ground 1, the submission that the conduct of the Crown had “taken away any effective cross-examination” significantly overstated what had occurred. The effect of the cross-examination of the complainant, both before and after she learned of the content of the recorded conversation, was replete with concessions that could only favour Bandao. Regardless of the explanation given by the complainant for what she had told Ms Tejada, the jury had before them exactly what the complainant had said during the recorded conversation about Bandao not being involved.

7. [158]

   The trial judge raised with the parties whether a warning, pursuant to s 165, that the answers the complainant had given in cross-examination concerning the truthfulness of what she had said to Ms Tejada in the recorded conversation concerning Bandao’s movements might be unreliable because the complainant had been forewarned, should be given. The trial judge well understood that before such a warning could be given it had to be requested by one of the parties. Counsel for Bandao requested a warning pursuant to s 165 if a permanent stay was refused (T 467.22). Counsel for Bruce also requested that a direction be given immediately, as well as in the summing up (T 456.38). The Crown accepted that such a warning should be given (T 465.46). Importantly, the first s 165 warning was given before the complainant was re-examined.

8. [159]

   The importance of the cross-examination of the complainant is obvious. However, the complainant’s cross-examination on behalf of Bruce shows that it was able to be carried out without the disclosure of the recording of the conversation to her. The submissions by Bruce’s trial counsel did not substantiate the claim of a forensic disadvantage to Bruce. Nor did the submissions on behalf of Bruce to this Court identify how the cross-examination of the complainant by his trial counsel was adversely affected by the conduct of the Crown. The submissions that were made, both at trial and on this appeal, dealt with the forensic disadvantage to Bandao not Bruce.

9. [160]

   His Honour appreciated this and dismissed the application for a permanent stay by Bruce out of hand. He did this after he had properly balanced the relevant matters that he had to take into account for a permanent stay.

10. [161]

    The fact that the warning with respect to the complainant’s evidence was given in the summing up without complaint by Bruce’s trial counsel indicates that he saw that no unfairness had occurred to Bruce by the complainant having listened to the recording during her cross-examination. Accordingly, no error occurred in his Honour’s rejection of the application for a permanent stay by Bruce.

11. [162]

    As has already been pointed out in relation to Ground 1, it needs to be kept in mind that unlike the usual case of this kind, the Crown case did not depend upon the evidence of the complainant. Her evidence was intended to supplement that of Alcazar. That fact was an important consideration to be weighed by the trial judge when dealing with the permanent stay application. The evidence which was said to have been weakened was not that of the principal Crown witness but concerned cross-examination of a witness whose evidence was intended to support that of the primary Crown witness. It could not be said that the evidence of the complainant went to the root of the trial.

12. [163]

    It follows, therefore, that the degree of forensic disadvantage did not reach a point where nothing other than a permanent stay would have overcome it. The complainant’s denials of Bandao’s involvement in the recorded conversation remained as evidence and the warnings pursuant to s 165 of the Evidence Act reduced the probative value of her explanation of those denials as did his Honour’s critical review of her evidence in the summing up (see [91] hereof).

13. [164]

    Bruce suffered no unfairness by the complainant listening to the recorded conversation during his counsel’s cross-examination of her. No forensic disadvantage affecting him has been identified, other than the general consideration that if the complainant’s explanation of what she said about Bandao in the recorded conversation was accepted by the jury, the attack on her credit would be somewhat weakened.

14. [165]

    These grounds of appeal have not been made out.

Ground 2 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Counts 1 and 2, the primary Count 3 and Counts 4 and 5 (Bruce appeal).

1. [166]

   Counsel for Bandao submitted that the account of the complainant was so affected by her intoxication she had no continuous recollection of what had occurred but only a recollection of various isolated events. He submitted that the complainant’s memory problems were such that she was unable to distinguish the number of assailants. Her evidence as to the presence of Bandao in the toilet was contradictory.

2. [167]

   Counsel for Bandao submitted that the evidence of Alcazar was unreliable and was adversely affected by his plea of guilty and by the arrangement, which he had entered into with the Crown, to give evidence in the proceedings. This formed the basis of the warning, pursuant to s 165 of the Evidence Act, given by his Honour in respect of his evidence. Counsel for Bandao submitted that one of the principal difficulties with the evidence of Alcazar was his inability to explain how and when people went into the toilet room. Counsel for Bandao noted that the evidence of Alcazar in respect of Count 2 was directly contradicted by that of the complainant.

3. [168]

   Counsel for Bandao submitted that it was not in dispute that the toilet room was small so that it was difficult to envisage four people being present in such a small space. Counsel for Bandao submitted that the evidence of the other persons at Bandao’s home on the night (Messrs Hradavec and Lim) did not assist the Crown’s case in that it did not place Bandao specifically in the toilet area.

4. [169]

   Counsel for Bandao specifically relied upon the following direction to the jury given by his Honour in relation to Alcazar in his summing up:

5. [170]

   Counsel for Bandao submitted that the verdicts of the jury need to be looked at against what the trial judge said so that the directed verdict on count 4 and the acquittals in respect of counts 1, 2 and their alternatives, give rise to a significant risk that the verdict of guilty found by the jury in respect of the alternative count to count 3 was a compromise verdict and therefore was unsafe and unsatisfactory.

6. [171]

   Counsel for Bandao submitted that the verdict of not guilty in respect of count 1 was consistent with the rejection of the evidence of Alcazar by the jury as to Bandao having been present at the time Alcazar commenced having sexual intercourse with the complainant. Counsel submitted that for that reason it was necessarily inconsistent with a finding of guilt in respect of the alternative to count 3 which required Bandao’s presence at that time.

7. [172]

   Counsel for Bruce made similar submissions as to the evidence. In addition, she had regard to the Markuleski direction (Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82) which was as follows:

8. [173]

   Counsel for Bruce submitted that this direction was defective in that it had imported into it his Honour’s personal observation “it seems to me” so that the jury may not have understood that this was a direction of law. Counsel for Bruce submitted that the direction given by his Honour was insufficient in the circumstances of the trial to impress upon the jury the logic required and the use to be made of any reasonable doubt entertained on one count because there was not the force of his Honour’s authority behind the direction.

9. [174]

   Counsel for Bruce submitted that since the jury had rejected any direct sexual offending by Bruce and Bandao (by their verdicts on the other counts), they could only have been relying upon joint criminal enterprise as a basis for the liability found on the part of Bruce and Bandao in respect of the alternative to count 3. She submitted that none of the directions of law by his Honour, nor the evidence, were consistent with a joint criminal enterprise that could stand alone without the first and second counts being proved and without the actual involvement of Bruce and Bandao in the sexual activity, being established.

10. [175]

    Counsel for Bruce submitted that the evidence in relation to the events immediately before, after or during the sexual activity in the toilet room did not include any conversation, looks, action, directions between the alleged offenders or any activity upon which a joint criminal enterprise could be inferred. She submitted that his Honour’s directions and the Crown case did not particularise a joint criminal enterprise in terms other than the “sexual activity” said to have been engaged in by Bruce and Bandao. She submitted that at its highest, the evidence only established that Bruce and Bandao may have been present while Alcazar was engaged in sexual intercourse with the complainant but mere presence did not establish a joint criminal enterprise.

11. [176]

    Counsel for Bruce submitted that the course and length of the jury deliberations (three days), the communications from the jury including two requests for the summing up and the mixed verdicts, were consistent with and strongly indicative of a compromise verdict in that the verdict delivered by the jury constituted “an affront to logic and common sense”.

Consideration

1. [177]

   The challenge by the applicants under these grounds of appeal is twofold. Counsel for Bandao has focused upon the evidence at trial and on contradictions and inconsistencies in that evidence. He submitted that there was insufficient evidence to establish the presence of Bandao in the toilet room at the time that Alcazar was sexually assaulting the complainant. Counsel for Bruce has implicitly accepted that there was evidence to establish the presence of Bandao and Bruce in the toilet room, at the time that Alcazar was sexually assaulting the complainant. In the absence of any evidence as to what they were doing, and in particular whether they were actively engaged in any sexual activity with the complainant, counsel for Bruce submitted that their mere presence in the toilet in such circumstances did not establish that they were engaged in a joint criminal enterprise with Alcazar at the time.

2. [178]

   In relation to the evidentiary issue, the relevant principles are set out in SKA v The Queen [2011] HCA 13; 243 CLR 400 where the plurality (French CJ, Gummow and Kiefel JJ) said:

3. [179]

   On the issue of inconsistent verdicts, the relevant principles were set out by Beazley JA (with whom Simpson and Bell JJ agreed) in Regina v James [1999] NSWCCA 191 which summarised the conclusions in R v MacKenzie [1996] HCA 35; 190 CLR 348:

4. [180]

   The toilet room, where the offences were alleged to have occurred, is shown in photographs 9 – 18 of Exhibit H, in particular photographs 9 and 13. The toilet itself appears well back from the door. The internal dimensions of the room were not the subject of evidence but the room appears to be eight tiles wide by at least eighteen tiles deep. Accordingly, a rough calculation suggests that the room was in the region of 80cm wide and at least 2m deep.

5. [181]

   The photograph makes it clear that four persons could have fitted into the room as alleged by the Crown, particularly if one of them were small and bent over the toilet. It is also apparent that if four persons were in the toilet room, they could each reach out and touch the other occupants. Alcazar’s penetration of the complainant would have been obvious to anyone who was in the toilet room unless that person deliberately looked away.

6. [182]

   The case for Bruce and Bandao was that they were not inside the toilet room at the time that Alcazar was assaulting the complainant. The evidence in support of their cases was at best contradictory.

7. [183]

   Mr Lim did not remember Bandao following him to the gate when he went to move his car. He did not see Bandao give Ms Tejada a glass of water. When Mr Lim returned from re-parking his car, he only saw Ms Tejada and Mr Hradavec. Mr Lim did not see Bandao, Alcazar or Bruce either outside or inside the house.

8. [184]

   Mr Hradavec, whose account of what happened lacked detail, did not remember Bandao being with him and Ms Tejada while she was on the grass, nor when he was bringing her a glass of water.

9. [185]

   Only Ms Tejada supported Bandao’s account and the jury were entitled to reject her evidence. She was clearly not an impartial witness and much of her evidence was designed to exculpate Bandao. Ms Tejada in her statement told police Bandao “went to the bathroom to get the complainant out”. Ms Tejada’s role in speaking to the complainant on 2 July and recording that conversation confirmed her lack of objectivity.

10. [186]

    The evidence of Alcazar (albeit the subject of a s 165 warning) as extracted (at [43] hereof), placed Bandao and Bruce in the toilet room while he (Alcazar) was assaulting the complainant. Although Alcazar’s evidence concerning the detail of the sexual assaults may have given rise to a doubt about whether the penile-oral and digital-vaginal penetrations as alleged by the Crown as the bases for Counts 1 and 2 occurred, his evidence concerning the presence of Bandao and Bruce was more definite. The jury had a considerable advantage in assessing the evidence which he gave.

11. [187]

    While Alcazar had committed acts of sexual assault against the complainant and received a discount for giving evidence against Bandao and Bruce, the jury were appropriately warned, pursuant to s 165 of the Evidence Act, concerning his evidence. The jury were entitled to accept his evidence, or part of it, subject to taking the warning into account.

12. [188]

    As can be seen from the extract of his evidence, Alcazar said that the complainant “was sucking [Bandao] off” and that she “started smoking Bandao and then he [Alcazar] just started rooting her”. Accordingly, the evidence of Bandao’s commission of an act of sexual penetration with respect to Count 1 was only colloquial. It lacked the detail to substantiate the penetration of the complainant’s mouth by Bandao’s penis. This lack of precision in evidence, when added to the possibility that Alcazar had penetrated the complainant’s mouth with his penis, is able to explain the acquittal of Bandao on Count 1.

13. [189]

    There are other ways to reconcile Bandao’s acquittal on Count 1. The complainant denied any penile-oral penetration when she was examined at Westmead Hospital. That evidence, taken with the possibility that it was Alcazar who committed the act of penile-oral penetration (given the complainant’s evidence as to her recollection of the colour of the penis), was sufficient to explain the jury’s verdict on Count 1.

14. [190]

    Although Bruce did not give evidence, it is apparent from the cross-examination of other witnesses by Mr Trevallion, that Bruce accepted that he and the complainant had kissed and that there had been some touching before the assault by Alcazar. It was Bruce’s case that he had left the toilet room before that assault occurred. It was, however, well open to the jury to find that Bruce had remained in the toilet after he kissed the complainant and that his behaviour included touching her in a sexual way and that this occurred when Alcazar was assaulting her. It was put to Alcazar that after Bruce and the complainant kissed, Bruce had left the toilet. It was put that Bruce did this to open the side gate to let Mr Lim in. Alcazar said that this “didn’t happen” (T 608.11). Mr Lim denied that this happened. The force of Alcazar’s denials with respect to Bruce was something which the jury were in the best position to assess. Moreover there was no evidence which placed Bruce outside the toilet room during the whole of the time that Alcazar was inside.

15. [191]

    Ms Tejada implicated Bruce in her evidence that she saw him leave the toilet room before the complainant. There was undisputed evidence of efforts by Bruce to have Ms Tejada “drop” her statement. That the jury acquitted Bruce of Count 5 is not inconsistent with a conclusion that he had been in the toilet room with Alcazar and that he was the last of the three men to leave. The acquittal was merely a reflection of the paucity of evidence that went to substantiate Count 5. Moreover, there is no inconsistency between an acquittal on Count 5 and Bruce’s conviction on the alternative to Count 3 as far as credibility findings go. Count 5 depended on the evidence of the complainant and Ms Tejada, not Alcazar.

16. [192]

    As already indicated, the jury must have found that Bruce remained in the toilet after he kissed the complainant and that his behaviour included touching her in a sexual way, although they had a doubt that his touching extended to digital penetration of the vagina. There was also Alcazar’s strong denial that Bruce had left the toilet room after he and the complainant kissed (T 608.16). These considerations reconcile Bruce’s acquittal on Count 2 (TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128], [130] per Simpson J (McClellan CJ at CL and Latham J agreeing)) with his conviction on the alternative to Count 3.

17. [193]

    This aspect of the trial, i.e. as to what occurred, when it occurred and what persons engaged in particular conduct, depended very much upon an assessment of the witnesses. Applying the principles summarised in SKA and subsequent decisions by this Court such as Elwood v R [2016] NSWCCA 18 (Meagher JA with whom McCallum and Button JJ agreed), the assessment of such matters is very much a question for the jury which had a significant advantage in doing so over an appellate court. In Elwood v R that statement of principle was expressed as follows:

18. [194]

    Applying those principles, I am satisfied that it was open to the jury to find beyond reasonable doubt that the evidence of Alcazar should be accepted to the effect that while he was assaulting the complainant in the toilet room, both Bandao and Bruce were present.

19. [195]

    That does not end the matter. There remains the issue of whether on the evidence available it was open to the jury to be satisfied beyond reasonable doubt that the actions of Bandao and Bruce at that time were such as to make them participants in a joint criminal enterprise with Alcazar.

20. [196]

    What is required to establish a joint criminal enterprise was comprehensively restated by Bathurst CJ (Johnson and Fullerton JJ agreeing) in Dickson v R [2017] NSWCCA 78. There his Honour said:

21. [197]

    In the Summing Up, his Honour directed the jury as to joint criminal enterprise as follows:

22. [198]

    His Honour then gave a number of illustrations of what actions might give rise to a joint criminal enterprise and concluded with this example:

23. [199]

    His Honour returned to that issue later in the Summing Up as follows:

24. [200]

    His Honour gave conventional examples of what drawing an inference means. His Honour also warned the jury against entering a compromise verdict and made some observations about the evidence as follows:

25. [201]

    The Crown, both in its opening and final addresses, raised with the jury the issue of joint criminal enterprise in the following terms. In his opening address he said:

26. [202]

    In his closing address the Crown said:

27. [203]

    If, as I have found, it was open to the jury to be satisfied beyond reasonable doubt that when Alcazar was sexually assaulting the complainant in the toilet room, Bruce and Bandao were in that room, the jury must have accepted those parts of Alcazar’s evidence which described what he was doing at various times and to a lesser extent, what Bruce and Bandao were doing. This is particularly so in relation to Bruce, although clearly the jury were not satisfied that he had placed his penis in the complainant’s mouth. On the basis of Alcazar’s evidence, he and Bruce were in the toilet room together and were subsequently joined by Bandao, who had left Ms Tejada sitting on a grassed area outside that room.

28. [204]

    The issue specifically raised by counsel for Bruce is whether there was sufficient evidence to establish an agreement between the applicants and Mr Alcazar to engage in sexual activity with the complainant and what actions they took, if any, so as to make them equally responsible with Alcazar for his offending against her.

29. [205]

    There is no evidence of any actual agreement. The existence of an agreement has to be inferred from the actions of the applicants and Alcazar. On that issue, the photographs 9 and 13 of Exhibit H are important in that they show the toilet room and provide clear evidence of its confined space. When one has regard to those photographs, the overwhelming inference to be drawn is that if three young men entered the toilet room in the circumstances of this case and remained there together, while one of them engaged in various forms of sexual intercourse with the complainant, there was a tacit agreement that they together engage in some kind of sexual activity with the complainant. There is simply no other reason why they would enter such a small room together in circumstances where the complainant was bending over the toilet and vomiting.

30. [206]

    Insofar as the actions of the applicants are concerned, this case needs to be distinguished from that of R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228. The facts of that case involved some of the alleged offenders standing around a bed while one of them engaged in penile-vaginal intercourse with the complainant. There was no evidence that they did anything other than stand around the bed. In this case, the dimensions of the toilet room were such that once it is accepted that the three men were in the room together, they would of necessity have been in such proximity to the complainant as to have been pressing up against her. Because Alcazar was sexually assaulting the complainant, the applicants’ presence in such a small room must have, at the very least, served to encourage him to continue that activity.

31. [207]

    Insofar as Bruce is concerned, there was evidence from Alcazar of him touching the complainant while Alcazar was engaged in penile-vaginal intercourse with her. Whereas it was clear that the jury did not accept that Bruce had engaged in digital-vaginal intercourse, it was open to them to accept that Bruce was touching the complainant in a sexual way but in a way which did not amount to digital penetration of her vagina. The presence of Bandao in the toilet room while Bruce and Alcazar were so engaged, it can logically be inferred, was to also engage in some kind of sexual activity with the complainant. At the very least, there is a strong inference available that his presence in those circumstances was intended to encourage Bruce and Alcazar in their sexual activities.

32. [208]

    The jury may well have accepted Alcazar beyond reasonable doubt to the extent that while he was having penile-vaginal sexual intercourse with the complainant, Bandao and Bruce were there with him in the toilet room engaging in some kind of sexual activity directed towards the complainant, but were not satisfied that the evidence was such as to establish beyond reasonable doubt that they had committed the precise offences identified in Counts 1 and 2.

33. [209]

    While such an approach was not directly in accordance with what they were told in the summing up by his Honour, nor in the opening and closing address of the Crown, it is certainly not a farfetched or speculative analysis. The jury knew as a fact that Alcazar had engaged in sexual intercourse of various kinds with the complainant. Once they were satisfied beyond reasonable doubt that Bandao and Bruce were also in the toilet room in circumstances where they had no good reason for being there other than the pursuit of or encouragement of sexual activity directed towards the complainant, the directions which the jury had received in relation to joint criminal enterprise were such as to enable them to bring in the verdict which they did. As the Crown made clear in his opening “Should you find that agreement, and should you find that the agreement was to commit a crime and that crime was sexual assault without consent, then the result and this is the important part is it doesn’t matter whose penis goes in the complainant’s vagina, whose fingers go in her vagina, whose penis goes in her mouth, if they are acting together”. It is also not without significance that the jury requested a copy of his Honour’s summing up which set out in detail with examples what actions could constitute a joint criminal enterprise.

34. [210]

    The explanation of the jury’s verdict can be put in a rather more simplistic way based on the small dimensions of the toilet room. Why would three males be in such a small room while one of them was engaging in penile-vaginal intercourse with a heavily intoxicated young woman unless they also were either participating in some way or were encouraging the person known to be actually engaging in sexual intercourse.

35. [211]

    It follows that I am satisfied that it was open to the jury to find beyond reasonable doubt that the applicants were part of a joint criminal enterprise so as to be guilty of the alternative to Count 3.

36. [212]

    In relation to counsel for Bruce’s attack on his Honour’s Markuleski direction, this is without substance. It is true that the direction is not as detailed as that in the Criminal Trial Courts Bench Book but it was nonetheless effective in communicating the essential element, i.e. if the jury had a reasonable doubt about one of the charges they were entitled to take that doubt into account when considering other charges. That direction was given in clear and unequivocal terms and did not involve an express statement that this was merely the opinion of the judge (see [173] hereof).

37. [213]

    The orders which I propose in relation to each applicant are:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.

38. [214]

    PRICE J: I agree with Hoeben CJ at CL and with the orders his Honour proposes.

39. [215]

    WILSON J: I agree with Hoeben CJ at CL.