Jha v The King

1. [1]

   THE COURT: Mr Kumar Raghav Jha seeks leave to appeal from his conviction by the District Court of New South Wales, constituted by judge and jury, of a single count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).

Overview

1. [2]

   The jury’s verdict followed a 6 day trial. The main witnesses were the complainant, who cannot be named by reason of s 578A of the Crimes Act, and the applicant. The complainant gave evidence in chief on the second and part of the third day of the trial and was cross-examined on the third and fourth days of the trial. The applicant was cross-examined for the majority of the fifth day of the trial. The Crown case was that after the initial acts of sexual intimacy, the complainant had expressly and repeatedly refused consent to any act involving her penetration.

2. [3]

   There were text messages between the complainant and the applicant the following morning, and CCTV footage of the pair, and the applicant’s flatmate, arriving and leaving the applicant’s apartment. The Crown also led evidence of complaint from some of the complainant’s friends, and of her communications with a general practitioner on 23 August 2021 and thereafter. There was also a “pretext” call made by the complainant to the applicant on 6 October 2021, and an electronically recorded police interview of the applicant on 28 October 2021.

3. [4]

   The District Court imposed a sentence of imprisonment for a period of three years and six months, with a non-parole period of two years and three months. The sentence was back-dated in light of the applicant’s being remanded in custody from 4 May 2023, with the result that the non-parole period expired on 3 August 2025. He has subsequently been (and continues to be) on parole. The applicant does not seek leave to appeal against a sentence which has now in very large measure been served.

4. [5]

   By way of overview, there was no dispute that the pair had met by using an online dating application, and, after exchanging messages, first met in person on 7 August 2021, and subsequently in person on 21 August 2021. There was no dispute that the pair engaged in acts of sexual intimacy at the applicant’s home on 21 August 2021. There was no dispute that those initial acts were consensual, and included cunnilingus. There was also no dispute that the applicant thereafter engaged in penile-anal sexual intercourse with the complainant. The principal issue at trial was whether the Crown could establish beyond reasonable doubt that the applicant had sexual intercourse with the complainant without her consent and knowing that she was not consenting.

5. [6]

   The trial judge identified the main issues of fact at the commencement of his summing up as follows:

6. [7]

   The applicant was represented by counsel and solicitor throughout the trial. However, he appeared in this Court unrepresented. His notice of appeal, filed on 22 September 2025, which requires a substantial extension of time, states:

7. [8]

   Concerning the extension of time, the Court indicated during the hearing, and in the absence of any oral submissions from the Crown directed to refusing leave to appeal on the basis of delay, that the grounds would be determined on their merits.

8. [9]

   The applicant’s main written submissions (of 37 pages plus annexures) were careful and detailed, although in a number of respects they reflect his lack of legal qualifications. Their structure reflected the fact that the applicant divided his appeal into eight topics, as follows: evidence improperly admitted, evidence improperly excluded, insufficient evidence to support the finding of guilt, other evidence, misconduct from the defence barrister, prosecutorial misconduct, police misconduct and procedural fairness. Not all of those headings are accurate, and in particular under the heading “procedural fairness” was a complaint that the trial judge had erred in law in directing the jury. However, we shall address each of those submissions on their merits, irrespective of their nomenclature. We shall proceed in accordance with and by analogy to Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] and [117] and Tarrant v R [2018] NSWCCA 21 at [7]-[8] and first address the complaints external to the trial, namely the alleged misconduct by the police, the defence counsel and the prosecutor, then turn to the evidence before the jury and the applicant’s submissions concerning its inadequacy, and then the trial judge’s direction to the jury. Although no ground that the jury’s verdict was unreasonable was advanced in terms, we have adopted the Crown’s submission that in substance the applicant’s submissions that the evidence was inadequate should be understood as such a ground, and address it below.

9. [10]

   Most of the proposed grounds are not confined to questions of law, and so require the grant of leave: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Some also require leave because of decisions taken at trial, or because they turn upon evidence not adduced at trial.

10. [11]

    The applicant developed those grounds in an oral address, which completed at around 11:55am on the day of the hearing in this Court. After approximately 30 minutes of oral submissions from the Crown, the applicant was given some 45 minutes to address in reply. That amount of time reflected the fact that he had been under the misapprehension that in submissions in reply, he could respond to matters raised in the Crown’s written submissions. Nonetheless, in so far as matters had not previously been elaborated by him, the Court permitted that to occur.

11. [12]

    Further, shortly after judgment was reserved, the Court received an additional 13 pages of written submissions, apparently prepared by or on behalf of the applicant in response to the Crown case stated in the Crown’s written submissions, and a subsequent email containing a further submission. No leave had been granted for the supply of any further submissions. However, bearing in mind that the applicant is neither legally qualified nor represented, the Court indicated that it would have regard to those submissions, and they are mentioned below.

12. [13]

    Despite being told by the Court, after those two submissions had been received, that the parties had no further entitlement to supply submissions, the applicant did precisely that, by two further submissions, one substantive, one minor, on 13 and 14 April 2026.

13. [14]

    Submissions supplied after the conclusion of oral argument without leave are not permissible, even in something so serious as an appeal against conviction. When it occurred in Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28, it was deprecated in strong terms: at [28]–[31] and [143]. It is potentially unfair to other litigants, and it tends to diminish the attention that should be given by litigants to the written and oral submissions at the oral hearing. We appreciate that it is possible, despite the assistance from members of the public which the applicant was receiving during the hearing (a friend was permitted to sit next to him at the Bar table), that the applicant might not, when he sent his submissions on 2 April 2026, have been aware of that. But that appreciation does not extend to the submissions provided after he was explicitly told that he may not. Even so, we have had regard to those submissions, in accordance with a further communication of the Court on 15 April 2026, in the unusual circumstances of this case.

14. [15]

    The applicant also relied on no fewer than three affidavits and two statutory declarations, all of which were made after the trial. The Crown objected to them, but accepted that the Court would need to see them in order to rule on the objection, and the Court indicated that rulings would accompany judgment. That material is addressed below.

15. [16]

    For reasons that will become apparent, it will be more efficient to deal with each of the applicant’s proposed grounds, and in the course of addressing each ground address the pertinent evidence as well as the parties’ submissions.

“Police misconduct”

1. [17]

   These submissions were principally directed to what was said to have occurred prior to the applicant’s participation in an electronically recorded interview on 28 October 2021, some two months after the incident. The reason for this proposed ground was that in that interview the applicant gave a number of answers, when he was confronted with the complainant’s account, that were concededly incorrect, to which we shall in due course return.

2. [18]

   The applicant submitted that the detective did not inform him of his right to obtain legal representation or that he could request a lawyer to be provided. The applicant accepted that he was asked “do you want to speak to a lawyer” to which he answered “no”. However, the applicant maintained that he had not intended to waive his right to legal counsel, but rather to indicate that he had no lawyer to speak with. The applicant submitted that he “felt pressured and overwhelmed during the interview”.

3. [19]

   There is no evidence, as opposed to the applicant’s submission, of the conversation between him and the detective prior to participating in the interview. The interview itself commences with statements that the applicant’s rights were explained to him by the custody manager and he was given a copy of them, and that he did not wish to exercise any of those rights. None of the applicant’s submissions refer to the written form of rights which the applicant agreed at the outset of the interview had been provided to him, that had been read to him, and which he understood, nor did he seek to tender it.

4. [20]

   Further, the interview includes the following:

5. [21]

   Finally, at the conclusion of the interview, when the interviewing detective had left the room and the sergeant appeared who advised that he was a senior police officer not connected with the investigation whose function was to ensure fairness in the conduct of the interview, he asked and the applicant confirmed that he had taken part in an interview of his own free will and that he had no complaints about the manner in which he had been interviewed.

6. [22]

   This aspect of this ground is without factual foundation. There is no evidence (as opposed to the applicant’s assertion in his submissions) of anything that was said or not said by the police. But we would add that there is nothing on the face of the transcript of the interview to suggest that there was any material unfairness in what had occurred, still less is there any reason to think that the document which the applicant accepted at the time he received it, did not conform with reg 22 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 and Form 31 of that regulation which provides:

7. [23]

   The applicant’s written submission also raised a question concerning the legality of a recorded conversation between the complainant and applicant which was tendered at trial. The written submissions stated, “I am unsure whether the police had a warrant at the time”. This was not developed in oral submissions.

8. [24]

   There is no challenge to the admission into evidence of the recording of the conversation, nor any evidentiary foundation for what the applicant asserts by way of equivocal submission. There is no basis for a grant of leave to challenge the reception into evidence of the call (in any event, it was a relatively peripheral part of the case, which may explain why this point was not sought to be developed orally).

9. [25]

   The applicant also complained that he was “subjected to intimidation and manipulation intended to coerce a confession”. He also expressed a belief that “officers exploited this by putting words in my mouth and misrepresenting my responses”. That submission was not developed orally and is not borne out by the transcript of the interview. The applicant was confronted with the complainant’s case, and in response he made statements which were concededly untrue.

10. [26]

    Finally, the applicant’s submissions refer to a complaint made to the law enforcement conduct commission concerning police misconduct. That the applicant has made a complaint does not alter the fact that this ground is not made out.

11. [27]

    In the absence of any factual foundation for making complaints of misconduct, there should not be a grant of leave to advance this ground.

“Misconduct from the defence barrister”

1. [28]

   Under this heading, the applicant collected a suite of complaints about various things said and done by the counsel who appeared for him at trial.

2. [29]

   Some of the applicant’s submissions misapprehend the nature of the criminal trial. For example, the applicant complained that counsel during the sentencing hearing had described the applicant’s offending as a “one off”, and had accepted that the only appropriate penalty was one of full time imprisonment. The applicant’s complaint about his counsel’s description of the offending as a “one off” was, “However, I was not guilty, I had a clean record throughout”. The applicant maintained that his barrister had not performed the role of defending him to the best of his ability. This complaint is without foundation.

3. [30]

   As was pointed out by the Court during the hearing of the appeal, the sentencing hearing proceeded as it was required to, consistently with the jury’s verdict. When his counsel made the submission of which the applicant complains, he had been found guilty by the jury, and was in the process of being sentenced following his conviction.

4. [31]

   Further, given the circumstances of a non-consensual act of sexual intercourse by a man convicted after trial who showed no remorse, the submission that the only appropriate penalty was one of full time imprisonment was inevitable. Far from being a breach of the code of conduct, counsel was adhering to his obligation both to the Court and to his client.

5. [32]

   The applicant maintained in his written submissions that he “fired” his former counsel during his sentencing proceedings, shortly after he had received his written submissions on sentence. The submissions addressed further difficulties the applicant claimed to have had with another firm and another barrister. None of this was elaborated orally. In circumstances where no application is made to seek leave to appeal from the sentence imposed, it is not necessary to address these submissions any further. Some of the material adduced at the sentencing hearing, including former counsel’s submissions, and some of the transcript, was sought to be tendered in this Court through a statutory declaration made on 26 February 2026. That material is irrelevant. The Crown’s objection to its receipt must be upheld.

6. [33]

   Finally, the applicant says there was a miscarriage of justice, and that he was cheated, and that “[m]y barristers did not support me as they were clearly friendly with the Crown Prosecutor and it appears they wanted her to win”. The applicant’s submissions refer to his counsel being friendly with, and communicating with, the prosecutor, and not listening to his instructions.

7. [34]

   Once again, there is no evidentiary basis for any of this. Moreover, far from there being something wrong with defence counsel liaising with the prosecutor to reach agreement on issues, or being on collegiate terms with one another, it is both usual and expected. Further, on the face of the transcript, counsel who appeared for the applicant at trial made forensic decisions which were of considerable advantage to a client who had said things during an electronically recorded interview which he admitted were untrue. The applicant’s untrue statements in his police interview were before the jury and we shall address them below. The flatmate’s statement did not go before the jury – that is the gravamen of this aspect of his complaint against his former counsel – and we shall address it immediately below.

8. [35]

   An important aspect of the applicant’s complaint was the failure to obtain evidence from his flatmate, Mr Saleh Rubai. In order to understand this issue, which was prominent in the oral submissions in this Court, it is necessary to provide some factual detail.

9. [36]

   Mr Rubai had made a statement on 28 October 2021. That statement referred to his arriving home, some two or three weeks previously, on a Friday or Saturday night at around 9:45-10:00pm, when he saw the applicant and a woman sitting on a couch and playing chess. Some 15 minutes later, after he had changed out of his work clothes, he saw the applicant and the woman hugging and kissing, and maybe kissing on the couch, although he could not remember what the woman looked like and could not see her face. Mr Rubai also said that the pair had retired, some 40 or 50 minutes later, to the applicant’s room with the door closed, and he saw two or three bottles of wine. Then, “after I had my dinner I went back to my room, I was just browsing Facebook and looking on my phone. I could hear Kumar and the woman talking from time to time as the wall between our room is thin. I heard them talking a couple of times but just normal conversation. I fell asleep…” Mr Rubai then said that, some two to three weeks later, he had a conversation with the applicant concerning the incident and that the applicant had told him that the woman had made a sexual assault complaint against him and that the applicant had asked him to attend the police station to make this statement, and that he did so straightaway. The statement concluded with the sentence:

10. [37]

    The statement had been served as part of the Crown case, but was not read to the jury, nor did Mr Rubai give evidence either in the Crown case or in the defence case. The statement was made available to this Court in order to determine this ground. In this Court, the applicant maintained that Mr Rubai’s evidence supported his case powerfully, because if the complainant had not been consenting to the sexual intercourse, he would have heard her.

11. [38]

    There was no evidence provided to this Court of what had been said between the applicant and his counsel concerning Mr Rubai. In light of the fact that the applicant served affidavits in this Court in the week preceding the hearing of his appeal attaching the statement, the Crown did not have a sufficient opportunity to obtain a formal waiver of privilege from the applicant, and speak with the former counsel, and obtain records of the trial and if necessary adduce evidence in response. As will be seen, there was no need to delay the litigation in this Court for that to occur, because the position is tolerably clear on the face of Mr Rubai’s statement itself and the transcript at trial.

12. [39]

    Part of the applicant’s complaint was that Mr Rubai had been excluded from the Court. However, he was one of the witnesses identified as being called in the Crown’s case. For that reason it would have been appropriate for him not to attend Court during the initial stages of the trial.

13. [40]

    On 1 May 2023, which was the fourth day of the trial, counsel for the applicant stated:

14. [41]

    The obvious inference is that, by agreement, the Crown was not going to call Mr Rubai. If there was any prospect of Mr Rubai being called in the defence case (which is very much to be doubted for reasons given below), then it would have continued to be inappropriate for him to be present in the Court.

15. [42]

    The applicant submitted that he instructed his counsel to call Mr Rubai in his case, in the event that the Crown did not call him. There is no evidence of this, as opposed to the applicant’s submission.

16. [43]

    The largest component of the Crown’s oral submissions in this Court was directed to this issue, because it had not been advanced fully in the applicant’s written submissions and therefore had not been responded to in the Crown’s written submissions (as noted above, Mr Rubai’s statement was only served attached to affidavits made by the applicant on 23 and 26 March 2026).

17. [44]

    The Crown explained that calling Mr Rubai would have exposed the applicant to a large risk. The risk arose because the encounter giving rise to the charge occurred on 21 August 2021, but it seems, to say the least, far from unlikely that Mr Rubai was describing a subsequent encounter with a different woman, for the following reasons:

    1. (1)

       the date given by Mr Rubai was early October, rather than August 2021. Mr Rubai repeated in his statement (which was made 28 October 2021) that although he could not be certain of the date, it was only 2 to 3 weeks earlier.

    2. (2)

       The timing of the encounter was quite different because his evidence was that he came home only between 9:45-10:00pm whereas CCTV established that the complainant and applicant came home at 10:24pm and left at 12:33am, while Mr Rubai had left at 2:29pm and returned to the apartment at 12:08am.

    3. (3)

       Even if the time stamp on the CCTV footage was wrong by an hour, the events described by Mr Rubai are quite different from those on 21 August. There was no suggestion of two or three bottles of wine being consumed by the applicant and the complainant after they returned at 10.24pm; the CCTV footage shows the pair returning, with the complainant carrying a bottle of lemonade. And it was established beyond all doubt that the applicant and the complainant were in the apartment for 2 hours and 9 minutes, during the first 1 hour and 44 minutes they were alone, with Mr Rubai arriving 25 minutes before they left.

    4. (4)

       Mr Rubai’s recollection of changing out of his work-clothes, seeing the applicant and a woman briefly, checking Facebook for 40 minutes, having dinner in the kitchen, then retiring to his room when he heard the applicant and the woman talking quietly cannot be reconciled with the 25 minutes when he, the applicant and the complainant were in the apartment on 21 August 2021.

    5. (5)

       Mr Rubai was unable to give any description of the woman, or any detail which tied his recollection to the events of 21 August 2021.

18. [45]

    If Mr Rubai had been called, it was likely that the difficulties in linking his recollection to the events of 21 August 2021, as opposed to early October, would have attained prominence. That had every prospect of rendering Mr Rubai’s recollection of negligible value to the defence case.

19. [46]

    Further, it would have been amply open to the Crown to cross-examine the applicant on the basis that he had led Mr Rubai into conflating the woman who attended their apartment in early October 2021 with the complainant who said she had been raped in August. That is the ordinary inference flowing from the terms of Mr Rubai’s statement.

20. [47]

    Although the foregoing was expressed clearly in the Crown’s oral submissions in this Court – indeed, it was the principal issue addressed by the Crown orally – and despite the applicant being given ample opportunity to reply, both on the day of the hearing, and in further submissions supplied the following day, no criticism or refutation was made of any aspect of it by the applicant, save for the following contained in further submissions supplied after judgment was reserved.

21. [48]

    The applicant said, at p 5 of his further submissions dated 2 April 2026:

22. [49]

    The applicant also developed the proposition in his further submissions (based on the CCTV footage) that Mr Rubai was home for the final 25 minutes of the encounter, which was, according to the applicant, when the penile-anal penetration occurred (see p 2 of the submissions supplied after the hearing). That seems improbable, having regard to the events which were accepted subsequently to have occurred before the complainant left (including showering together), and Mr Rubai’s account (getting changed, seeing the pair briefly, browsing Facebook, having dinner, then retiring to his room when he heard them conversing quietly). But even assuming favourably to the applicant that there was at least a chance that a third person was in the apartment at the critical time, as opposed to after the penetration giving rise to the charge had occurred, none of that undercuts the cross-examination which he could have been subjected to as to the circumstances in which he had caused Mr Rubai to make his statement.

23. [50]

    The applicant’s further submissions of 13 April 2026 returned to this topic. Ordinarily we would not receive them, provided without leave and contrary to an express instruction. However, the impression conveyed by the applicant is that he has a lingering sense of resentment that his points have been ignored, especially this point, for he emphasised his flatmate as the only witness. In those unusual circumstances, we shall address this aspect of his further submissions (being pages 21-23 of the submissions supplied on 13 April 2026).

24. [51]

    In those submissions, the applicant accepted that Mr Rubai returned to the flat at the time shown by the CCTV footage. He did not respond to the submission that that timing “significantly contradicted the applicant’s version in his police interview”. In response to the Crown’s submission that “Defence counsel may therefore have been concerned, that if Mr Rubai was called, his evidence would not have assisted the defence case”, he said:

25. [52]

    In response to a reference to the transcript recording agreement between Crown and defence concerning not calling Mr Rubai, the applicant submitted:

26. [53]

    First, there is no evidence of the factual matters on which the applicant relies.

27. [54]

    Secondly, it is very likely that what was “resolved” was that the Crown would not call the flatmate. It is possible that the agreement went further, and extended to the proposition that in the event that the applicant gave evidence, he would not be cross-examined on his involvement in obtaining Mr Rubai’s statement. (This is inference; by reason of the applicant’s delay in raising this aspect of his argument, and only serving Mr Rubai’s statement a week before his appeal was heard, the Crown did not have an opportunity to speak to the applicant’s former lawyers. However the fact of the matter is that the applicant was not cross-examined on his involvement in obtaining Mr Rubai’s statement.)

28. [55]

    Thirdly, there is no attempt by the applicant to engage with the likelihood that calling Mr Rubai would have exposed the applicant to cross-examination to the effect that he had procured Mr Rubai to give an account of a different woman returning to the apartment, some two or three weeks earlier, and earlier in the evening, where alcohol was drunk rather than lemonade. The force of the Crown’s submission is obvious. It is incorrect to assert that the Crown has “failed to come up with a logical excuse to defend” the applicant’s former counsel. To the contrary, the applicant has failed to engage with the obvious consequences of why Mr Rubai’s statement would most likely have proven to be extremely damaging to the applicant.

29. [56]

    Far from amounting to any departure from the ordinary standards of counsel appearing for an accused, the obvious inference is that a forensic decision, which on its face was highly favourable to the applicant, was made by his former counsel.

30. [57]

    These grounds are not made out. Further, they are without any foundation and should never have been advanced. Had the applicant been a legal practitioner, we would give serious consideration to a reference to the appropriate professional body. Leave should be refused to rely on these grounds.

“Prosecutorial misconduct”

1. [58]

   Pages 28-30 of the applicant’s written submissions in support of his appeal address this heading. For the most part, they refer to statements made by the Crown at trial. Some were not made in the presence of the jury, including the first (a statement concerning what the applicant maintains was a mistake in a text message he sent to the complainant the following day) and the second (discussion concerning an Edwards direction). There is nothing remotely controversial about these statements, and even if there were, they could not have affected the jury’s verdict.

2. [59]

   The majority were made to the jury in the Crown address. The applicant complained that the prosecutor repeatedly told the jury that he had lied to the police. The applicant also complained about the prosecutor inviting the jury to reject the applicant’s evidence that he did not have time to answer the complainant’s call because he was working, in circumstances where he did not take the call, but shortly afterwards returned it. The applicant complained that the prosecutor invited the jury to reject his account that the text message “I won’t do that again” was a mistake, and find it was a total fabrication, and reject his evidence that the complainant had never said “no penetration”. Finally, he complained about the Crown saying to the jury:

3. [60]

   Those submissions were made following a trial in which the applicant conceded in his evidence in chief that critical aspects of the answers to questions asked in the police interview were untrue.

4. [61]

   In his evidence in chief, he was taken to his answers in the interview to the effect that there had been a phone call between him and the complainant on 21 August, that there had been contact between the two between 21 August and 6 October, and whether the complainant had ever used the words “no penetration” in text messages. He agreed with his counsel that his answers at the interview on each of those topics were not truthful. He was asked by his counsel “Why weren’t you honest with the police about these things in your record of interview?” The third question he was asked in cross-examination, to which he agreed, was “[y]ou’ve accepted that you made a number of false statements to police in your interview, is that correct?”

5. [62]

   This led to a direction from the trial judge, of which no complaint was made, concerning the effect of any lies by the applicant made during in the interview, namely, that if the jury so found, they could take it into account in assessing his credibility, but could not use it as proof of his guilt. The applicant gave an explanation in this Court concerning why he had not told the truth in that interview: he said that he was “in complete shock” and was nervous, and made mistakes. The mistakes included misremembering the time of his arrival, misremembering a phone call he said he made on the following day. He maintained that “you know, mis-remembering is not a lie”.

6. [63]

   It may be accepted that there may be, in some contexts, an important distinction between saying something that is not true, saying something that is false, and saying something that is a lie. There is a distinction between a witness giving an incorrect answer despite trying his or best to answer truthfully, and a witness making a deliberate lie.

7. [64]

   For that reason it is often preferable to make submissions couched in terms of accepting or rejecting evidence, rather than evidence being a “lie”, and if the word “lie” is to be used, for it to be framed as a “deliberate lie”. A “lie” is ordinarily understood as a deliberate untruth, as stated in Edwards v The Queen (1993) 178 CLR 193 at 208; [1993] HCA 63. But language is imprecise, and indeed the standard tests for a direction considered in Edwards commence with being satisfied that the lie is a deliberate lie: see Lord Lane CJ’s formulation in Regina v Lucas (Ruth) [1981] QB 720 at 724, in R v Lane [2011] NSWCCA 157; 221 A Crim R 309 at [60], in Dawson v R [2024] NSWCCA 98 at [137] and in many other cases. That is simply a consequence of the fact that sometimes as a matter of English the word “lie” may be equated to a statement that is false but falls short of being a statement that is known to have been false when it was made. There is a wide range of circumstances in which incorrect answers are given, which might fairly be regarded as lies. They might include answers such as “I don’t know” made without taking any steps to think about the question, cases where a witness is not certain, but believes that the answer is probably incorrect, and cases where a witness positively advances an answer which is fabricated.

8. [65]

   But this case does not turn on such fine distinctions. A great deal of the applicant’s evidence was not only incorrect, but could fairly be characterised as a “lie” in the sense that he knew or at least ought to have known that it was not correct.

9. [66]

   By way of example, he was cross-examined about the phone call from the complainant on the following morning which he had mentioned in his interview, and said “Yeah well, that – that was just – yeah, that phone call never existed”.

10. [67]

    By way of further example, some of the applicant’s evidence was highly implausible. During cross-examination, he maintained that two or three minutes after he had ejaculated into the complainant’s anus, he had joined the complainant in the shower where she had engaged in fellatio. This had not been mentioned in his police interview, or his evidence in chief. There was the following exchange:

11. [68]

    At the conclusion of the evidence, and in the absence of the jury, there was discussion concerning whether a direction concerning relying on lies as consciousness of guilt should be given. The Crown said, "I'm not putting the application forcefully", and it was opposed by the defence, and rejected by the judge.

12. [69]

    It was common ground that a direction in accordance with Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23] should be given, and such direction was given. It was never suggested that the applicant had not been cross-examined in a way such as to preclude a finding that he had been lying.

13. [70]

    Returning to the applicant's submissions in this Court, many of the references by the Crown, to which the applicant complains, were that the jury should reject his evidence, or that his evidence was not the truth. It was entirely proper for the Crown to couch her submissions in that fashion.

14. [71]

    There were also occasions when the prosecutor went further. The applicant complains of one, and there are others to similar effect, where it was said that his evidence was full of lies. It would have been preferable if counsel had consistently said that some of his answers to the police were untrue, which is the concession made at trial. But in the circumstances of this case, which included it having been put to the applicant that some of his evidence was “completely made up” and a “complete fabrication”, there was nothing like prosecutorial misconduct in the submission that he had lied to police.

15. [72]

    The applicant’s submission continued: “The [prosecutor] knew what she was doing was wrong” and “continued to accuse me as a liar and untrustworthy”. The applicant said that those false statements departed from the standards required of the Director of Public Prosecutions.

16. [73]

    There is no basis for this ground. Once again, had it been made by a legal practitioner, we would give serious consideration to a reference to the professional body.

Weaknesses in the evidence

1. [74]

   Although in his written submissions the applicant maintained that much of the evidence in the Crown case had been obtained improperly, in oral submissions he clarified that his real intention was that the inconsistencies in the Crown case should have prevented the jury from being satisfied beyond reasonable doubt of his guilt. By way of example, the applicant emphasised that the complainant had given a variety of accounts of how it was, on her case, he had pinned her to the bed before penetrating her, arguing “sometimes she’s on her side, sometimes she’s on her tummy”; “sometimes she said I like I was on my chest and other times she said like I was on my side”. Of course, the fact that a witness gives inconsistent accounts does not of itself make the evidence inadmissible. Hence the applicant’s real point was that, in light of the inconsistencies, the jury should not have been persuaded to the criminal standard of the accuracy of her account. But it is scarcely surprising that more than a year after the event, the complainant was not completely sure of her position when, on her case, she had been forcibly raped against her will. Indeed, it would have been more unusual if every aspect of the complainant’s recollection dovetailed consistently. Inconsistencies in a witness’s testimony may be taken into account by the jury, but they do not stand in the way of the jury being persuaded to the criminal standard of the only fact in issue, which is whether the complainant had effectively communicated that she did not consent.

2. [75]

   The applicant submitted that the explanation for her inconsistencies was that the complainant had never been “trapped” by him forcibly. To that, he added that she was tall, her shoulders were broader than his, and that she had many years of experience in martial arts, all of which she had accepted in cross-examination. This was put forward in the defence address, and was fairly summed up by the trial judge:

3. [76]

   The jury was well placed to assess these submissions.

4. [77]

   The applicant pointed to the CCTV footage which, as the pair arrived, showed them either behaving amicably or amorously, and as she left, had her apparently calm and composed. None of that is inconsistent with the Crown case, which was that there had been consensual sexual activities, some initiated by the complainant before non-consensual sexual intercourse.

5. [78]

   The applicant also emphasised conduct by the complainant which was said to be inconsistent with any absence of consent, including her kissing him, dancing in the lift-well, touching him in the lift, playing sensual music, and so on. The complainant agreed that she had conveyed to him, by her conduct and words, that she was sexually aroused. None of this assists to impugn the jury’s verdict, in circumstances where the complainant accepted and the Crown case was that the acts of sexual intimacy before the assault were consensual.

6. [79]

   The applicant sought to make much of whether the complainant had subsequently attended her doctor. This submission was made by reference to the doctor’s witness statement dated 8 November 2022, which had been served as part of the Crown case.

7. [80]

   Towards the commencement of his oral submissions the applicant said “this is probably the most important document of this case”. In his later submission, the applicant said that the document “plays such a vital role and acts as a game changer”. Three paragraphs of that statement were read to the jury without the opposition of the defence, and the doctor was not required to attend for cross-examination. The three paragraphs were:

8. [81]

   The applicant’s complaint was that the document had not been placed before the jury, although, the paragraphs reproduced above had been read to them. The applicant said:

9. [82]

   The applicant’s submission misapprehends the way evidence is commonly adduced at a criminal trial where there is a jury. The applicant’s submission also overlooks an advantage gained by the defence in the course that was taken. If the whole of the statement had been before the jury, they would have read the concluding paragraph: “Based wholly or substantially on the above knowledge, I am of the opinion that [the complainant] was sexually assaulted”.

10. [83]

    The applicant also maintained in oral submissions that it was a matter of common sense that because the complainant did not immediately see a doctor, she had not been violently raped. The fact is she did go to a doctor, she did get tests for STDs done and the doctor who spoke to her two days later recorded that the complainant told her she had been sexually assaulted.

11. [84]

    On p 6 of the applicant’s written submissions supplied after the hearing, the applicant complained that a letter saying “the patient did not wish to be examined or photographed, and she did not provide any photographs. She did not want to be physically examined or referred to a sexual health clinic”. His complaint was that the “letter” had been removed from the jury. The submission proceeds, “Why was such an important statement NOT shared with the Jury???”. These submissions are incorrect. The sentences quoted in the submission which are said to be in the letter are the 4th sentence in paragraph 5 and part of paragraph 6 of the doctor’s witness statement. They were not removed from the jury. They were read to the jury. The Crown reminded the jury in closing address that the statement had been read to them. As did the trial judge in his summing up. It was not necessary for the jury to be provided with the document.

12. [85]

    The applicant sought to adduce, by way of fresh evidence, a series of text messages between him and another woman which was said to have been made only a few weeks after 21 August 2021. On their face, the exchanges are of a couple seeking to develop an emotional connection. The Crown objected. There was nothing to suggest that the evidence was not available at trial, nor was it apparent how the evidence could, if it could be adduced, impact upon the result of the trial. The applicant sought to tender this evidence because, according to him, it was relevant to refute the submission that his interest in and participation on the social media dating site was purely driven by sex, being what he told police (“I was just looking for sex”, “that’s all I was looking for”). The applicant submitted that the messages proved that his answers to police were wrong.

13. [86]

    Those documents do not advance the applicant’s appeal and will not be admitted into evidence. They are annexed to an affidavit made on 26 March 2026 which also contains Mr Rubai’s statement. Mr Rubai’s statement should be before this Court, but because it was also attached to an affidavit made on 23 March 2026, it will be sufficient to have the 23 March affidavit before this Court, and to reject the affidavit made on 26 March 2026.

14. [87]

    This was a reference to text messages exchanged the following morning. In light of the submissions, it is necessary to reproduce them in some detail. They were exchanged between 11:38am and 12:09pm the following day.

15. [88]

    The complainant said “I just want to be left alone please” and the applicant responded “what happened now??” and “didn’t realise I made you upset sorry”. The complainant then sent this text message:

16. [89]

    The following exchange over text then took place between the applicant and complainant:

17. [90]

    First, it may be observed that at no stage did the applicant dispute that the complainant had said, “No penetration” and, “No… don’t. Please stop.”

18. [91]

    Secondly, the applicant wrote “I won’t do that again”. The applicant said this was a typographical error, and he had meant to say “we won’t do that again”, because it was consensual sex. That submission had been made at trial, and was included in the trial judge’s summing up. The jury was well placed to evaluate this explanation.

19. [92]

    Thirdly, it may be noted that even if it was a typographical error, that does not explain the repeated apologies in the applicant’s text messages, especially the immediately preceding words “why can’t you forgive me!” The applicant sought to address this in oral submissions. He said:

20. [93]

    Once again, the jury was well placed to determine the extent to which this contemporaneous evidence bore upon whether the Crown had established the elements of the offence to the criminal standard.

21. [94]

    At 9.20am on the morning of Saturday 21 August, the complainant wrote to a friend:

22. [95]

    The applicant emphasised that the complainant had called it “borderline” rape, not rape. That submission repeated what had been put to the jury, and it was an important part of the task of resolving the issue of fact as to consent. It was, to say the least, open to the jury to proceed on the basis that the text message confirmed that the complainant had told the applicant “NO” which he had heard and understood and ignored, and was nonetheless blaming herself for allowing herself to be placed in that situation. Read that way, the message powerfully supports the Crown case.

23. [96]

    The applicant sought to tender a receipt for a bottle of lemonade, made by him at 10:12pm on 20 August 2021. The point of doing so was directed to an issue about who had paid for the lemonade (which the complainant can be seen to be holding as the pair wait for the lift after arriving at the applicant’s building). Nothing material to the outcome of this appeal turns on this.

24. [97]

    The applicant also sought to tender further evidence, including a report and lay statements prepared for his sentencing. They are not relevant to the appeal and need not be summarised. Nor is an affidavit made on 15 October 2025 directed to his background, which in part resembles the sort of evidence regularly placed before this Court on “the usual basis” in the event that resentencing is necessary.

25. [98]

    The applicant supplied notes which responded to the Crown’s written submissions after the hearing adjourned. They in large measure repeated points already made, and have been incorporated into the above.

26. [99]

    The applicant also supplied a further submission on the morning after the hearing, as follows:

27. [100]

    Dealing with these points in order, it is sufficient to note the following.

28. [101]

    As to the first paragraph, whether the applicant caused the bruising shown on the photographs is peripheral to the principal issue, namely, whether the complainant communicated her absence of consent.

29. [102]

    As to the second paragraph, the evidence of complaint from the complainant’s friends is as the applicant points out inevitably second-hand and influenced by the complainant, but that is of the nature of complaint evidence and was a matter for the jury to bear in mind when determining whether the Crown’s case was established to the criminal standard.

30. [103]

    The third paragraph deals with submissions made concerning the following aspect of the transcript at trial during the complainant’s evidence in chief:

31. [104]

    It is plain that the complainant was describing with her hands and head and shoulders how she said she had been pinned down by the applicant on 21 August 2021, and that the trial judge and the Crown were concerned that the transcript accurately record her evidence, part of which was non-verbal. That is why the judge intervened to “describe what [the complainant] demonstrated in her last answer”, and why the Crown twice made statements “for the record”. There is nothing to suggest that the Court and the Crown were doing anything other than what regularly occurs during hearings, namely, ensuring that the transcript records as accurately as it can what the witness conveys.

32. [105]

    Finally, the applicant is right to say that much of the Crown case was not direct evidence of what someone saw or heard or felt of the sexual assault. The complainant’s own account was such evidence, and the rest of the case was evidence which more or less indirectly bore upon that account. Once again, that made this trial no different from many. It was for the jury to determine whether the Crown had discharged its burden of proving the elements of the charge to the criminal standard.

33. [106]

    We have looked at the further submissions supplied by the applicant on 13 and 14 April 2026, despite their having been supplied without leave. Ordinarily they would be rejected. In light of the significance to the applicant of the submissions based on his flatmate, we have addressed one aspect of those submissions above. The balance reiterates points already made orally and in his earlier written submissions.

“Procedural fairness”

1. [107]

   Though given the heading “procedural fairness” in the applicant’s written submissions, this ground substantively concerned the correctness of the law applied to the applicant. The applicant developed in his written submissions a point concerning the commencement of s 292A of the Criminal Procedure Act 1986 (NSW). That provision commenced on 1 June 2022, before the trial but after the incident giving rise to the charge. The gravamen of the applicant’s complaint was that:

2. [108]

   The applicant contended that the reforms introduced in June 2022, “fundamentally changed the legal definition and expectations around consent”, requiring affirmative consent which was actively communicated through words or actions, and which must be ongoing throughout the sexual encounter. He submitted that those standards had been wrongly applied retroactively to the incident between him and the complainant.

3. [109]

   When elaborated orally, his point was that before the introduction of those laws, there was no explicit requirement in NSW legislation to require the obtaining of a separate consent for each individual sexual act during intercourse. In the present case, it was accepted that the complainant had consented to the initial non-penetrative activity between the pair.

4. [110]

   The short answer to this proposed ground, as was observed during the hearing, is that:

   1. (1)

      the trial judge did not direct the jury in accordance with the new affirmative consent provisions which had commenced after the incident, and

   2. (2)

      at all material times, it was not the law that consent to some acts at the commencement of an encounter amounted to consent for each and every sexual act, including of a different kind thereafter. Section 61HE, which was in force on 20 August 2021, defined consent by reference to a person who “freely and voluntarily agrees to the sexual activity”, and expressly provided in s 61AG(9) that a person “who does not offer actual physical resistance to sexual activity is not only by reason of only of that fact to be regarded as consenting to the sexual activity”.

5. [111]

   In any event, the complainant’s account was that she gave active verbal and physical protests against the penetrative sexual acts of the applicant. Her evidence was that she said “don’t do anything. Don’t do it… don’t stick it in. No sex. No penetration” and “please don’t… please stop.” This was reiterated in the text messages she sent to him the following morning, and not disputed by the messages he sent in response.

6. [112]

   On the other hand the applicant’s account was that the complainant had freely and voluntarily consented to all of the sexual activity. Given the stark disparity between the two accounts, the Crown case relied only on actual knowledge of lack of consent, the result being that the only issue before the jury was whether they accepted the complainant’s account to the criminal standard. Questions of silence or lack of resistance or misinterpretation by the applicant did not arise at trial.

7. [113]

   This ground is not made out.

Unreasonable verdict

1. [114]

   Although not framed as an unreasonable verdict ground, the applicant complains that there was insufficient evidence to support the finding of guilt. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ held the following (at 493):

2. [115]

   The court must pay due regard to the advantages of the jury in seeing and hearing the witnesses. As their Honours stated in M v The Queen (at 494):

3. [116]

   The relevant principles that apply to the determination of an unreasonable verdict ground can be distilled as follows:

   1. (1)

      first, it is important to have regard to the complete exposition of the test set out above. Simply asking whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty”, conceals an underlying controversy as to when it is “open to the jury to be so satisfied”: ZT v R [2025] NSWCCA 193 at [56] (Dhanji J, Bell CJ and Yehia J agreeing as to the relevant test).

   2. (2)

      Secondly, application of the test requires the appellate court to make its own independent assessment of the evidence before considering whether any doubt that results is capable of resolution by the advantage held by the jury: see M v The Queen at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14], where the majority (French CJ, Gummow and Kiefel JJ) observed that, in applying the test, the appellate court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”.

   3. (3)

      Thirdly, the appellate court’s independent assessment is not the end of the process. Having made an independent assessment of the evidence, any doubt experienced by an appellate court may nonetheless be resolved having regard to the advantage enjoyed by the jury, the jury being “the body entrusted with the primary responsibility of determining guilt or innocence”: The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [7] citing M v The Queen at 493.

   4. (4)

      Fourthly, with respect to that advantage, the majority in The King v ZT said:

4. [117]

   The evidence before the jury may be summarised as follows.

5. [118]

   First, there was the testimonial evidence of the complainant, who was cross-examined extensively. She gave a clear account of her express lack of consent to penetrative sex. The complainant also acknowledged the consensual aspects of the first half of the evening, including acts of sexual intimacy, and acknowledged that she was communicating, by her words and her conduct, an invitation to as much. The jury was well placed to assess that evidence.

6. [119]

   Secondly, there were the messages exchanged between the applicant and the complainant the following day. They include the absence of any denial that she had said “No penetration. No … Don’t. Please stop”. Instead of denying those words were said, the applicant apologised and said “I won’t do that again”.

7. [120]

   Thirdly, there was the message from the applicant to a friend, when she said it was “borderline rape” but also that “he doesn’t know what NO means”.

8. [121]

   Fourthly, there was the testimonial evidence of the applicant, who denied that the complainant had said “No”, who maintained that it was physically improbable that he would have been able to pin her down, who said that three minutes after ejaculation he had been given fellatio by the complainant in the shower, and who submitted that he had only apologised to stop the complainant “harping on” and had intended to write “We won’t do that again” instead of “I won’t do that again”.

9. [122]

   Fifthly, there was the applicant’s electronically recorded interview which contained a number of matters which were concededly untrue, such as his speaking with her the following day early in the morning, about wanting to get into a relationship, for which he was not ready (which led to the text messages being exchanged later that day).

10. [123]

    Sixthly, there was the evidence from the complainant’s general practitioner, who recalled that the complainant had said she had been sexually assaulted.

11. [124]

    Seventhly, there were the CCTV recordings of the applicant, complainant and Mr Rubai arriving and leaving the apartment, the recording of the pretext call, which contained no clear admissions, and the telephone records between the pair (which confirmed the text messages and demonstrated that although the applicant tried to initiate two calls on the morning of 21 August 2021, the calls did not go through).

12. [125]

    Eighthly, there was the evidence of three of the complainant’s friends who testified that the complainant had reported the incident to them shortly after the incident as a sexual assault.

13. [126]

    We have each conducted an independent assessment of all the evidence that was before the jury (both as to its sufficiency and its quality) and are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

14. [127]

    Furthermore, the advantage enjoyed by the jury in this case was significant. The jury had the advantage of seeing and hearing the witnesses give evidence and determining issues of credibility and reliability.

Suppression order

1. [128]

   The applicant also made an application for “a suppression order”. The process was irregular, but we put that to one side in light of his not being represented.

2. [129]

   As framed in his written submissions, this was principally directed at causing a news item published by a commercial television’s website being taken down. He also sought an order to “prevent further media reporting about the case”.

3. [130]

   The applicant complained that the news report was “distorted and incomplete” and “does not accurately reflect the evidence currently before the court”. He said that “at the time, the complainant also expressed consent to anal intercourse”, and that “[t]hese details are supported by contemporaneous communications.”

4. [131]

   No differently from some of the applicant’s submissions in support of his appeal, this complaint confuses the defence case advanced at trial and what the jury determined. The jury’s verdict establishes that the applicant was guilty of the sexual intercourse without consent with which he was charged. The underlying foundation for his submission is misconceived.

5. [132]

   During the hearing, the applicant made submissions in support of the order. He claimed that the television station was aware of his application. There was no proof of service, and there was no appearance by the station; that is a sufficient reason for not determining the application at that time. But even if there had been service, there was and is no basis for the order sought. The applicant’s submissions disregard the fact that his case was rejected by the jury. Insofar as the applicant complains that the verdict has damaged his reputation and his employment prospects, that is the ordinary consequence of a conviction for a sexual offence, and not a basis for a suppression or non-publication order. There is a very strong public interest in the full and proper reporting of criminal trials: see Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159 at [52] and Dhankhar v R [2023] NSWCCA 67 at [44].

Conclusion and orders

1. [133]

   The Crown case turned on the jury being satisfied beyond reasonable doubt that the complainant had indicated her lack of consent to penetrative sexual intercourse. That was her evidence. It was denied by the applicant, both in his police interview and in his sworn evidence before the jury. The jury were well placed to determine whether the Crown had discharged the onus it bore, and in particular whether the complainant’s account of an evening which commenced with consensual acts of intimacy but ended with forcible non-consensual intercourse was made out. There was evidence, including the text messages between the complainant and the applicant the following day, and the text messages to the complainant’s friend, and a doctor, which supported the Crown case. There were inconsistencies which told against it, as well. However, none of the matters to which the applicant has pointed, either alone or cumulatively, casts any real doubt on the jury’s verdict. The complaint about the trial judge’s direction is not made out. The complaints about misconduct by the police and the Crown and the applicant’s counsel are not made out and should not have been made.

2. [134]

   There is no basis for a grant of leave in relation to the allegations made without evidentiary foundation directed to the police, the Crown or defence counsel. While there should to the extent necessary be a grant of leave in relation to the challenges concerning errors during the trial going to the reasonableness of the verdict, the appeal should be dismissed, as must the application for a suppression order.

3. [135]

   The Court’s orders and evidentiary rulings are:

   1. (1)

      Insofar as the appeal is directed to “police misconduct”, “misconduct from the defence barrister” and “prosecutorial misconduct”, refuse leave to appeal.

   2. (2)

      Otherwise, to the extent necessary extend the time within which to appeal and grant leave to appeal, but dismiss the appeal.

   3. (3)

      The “Application for a suppression order” filed 15 October 2025 is dismissed.

   4. (4)

      Note that the Court has had regard to the further submissions supplied on 1 and 2 April, as amended on 9 April, and 13 and 14 April 2026.

   5. (5)

      Admit into evidence the applicant’s affidavit of 23 March 2026.

   6. (6)

      Reject the tender of both of the applicant’s statutory declarations made on 26 February 2026 (each attaching four documents), and his affidavits made on 15 October 2025 and 26 March 2026.