Nguyen v R

1. [1]

   BEECH-JONES CJ at CL: This is an application for leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) against a conviction for sexual assault. The applicant’s sole ground of appeal is that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act, s 6(1)). For the reasons that follow, I would grant the applicant leave to appeal but dismiss the appeal.

Background

1. [2]

   On 12 October 2020, the applicant was arraigned before a jury panel and her Honour Judge O’Rourke SC on an indictment that charged that on or about 19 April 2019, he had sexual intercourse with the victim (“TN”) without her consent contrary to s 61I of the Crimes Act 1900 (NSW). The applicant pleaded not guilty. On 26 October 2020, the jury returned a verdict of guilty.

2. [3]

   On 16 April 2021, the applicant was sentenced to a term of imprisonment of 3 years and 4 months commencing 11 April 2021 with a non-parole period of 1 year and 8 months. The applicant is first eligible for release on parole on 10 December 2022.

3. [4]

   By the operation of s 578A(2) of the Crimes Act, the publication of the identity of TN or any information that identifies her is prohibited: Crimes Act, s 578A(4)(d)).

The Crown and Defence Case

1. [5]

   As further explained below, the Crown case rested almost exclusively on the evidence of TN to the effect that the applicant penetrated her twice without her consent sometime after midnight on 19 April 2019 while they were both in a Subaru motor vehicle that was parked in the carport of his apartment unit in Cabramatta. TN’s evidence was to the effect that she made her lack of consent clear to the applicant. TN told the jury that she initially decided to stay silent but went to the police after speaking to her ex-boyfriend, Mr Duong, in Vietnam, three days after the assault. The applicant gave evidence agreeing that he penetrated TN twice but stated that she appeared to consent and he believed she consented. The only “objective” evidence bearing on the difference between their evidence was the various text messages exchanged between TN and the applicant subsequent to the assault on 19 April 2021 and the days thereafter before she approached the police.

2. [6]

   The jury were instructed that, because the Crown case depended on its acceptance of the reliability and truthfulness of TN, unless they were satisfied beyond reasonable doubt that she was both an accurate and honest witness in the account she gave then it could not find the applicant guilty. The jury were also instructed that the only form of knowledge on the part of the applicant to TN’s lack of consent to sexual intercourse that was relevant was actual knowledge (Crimes Act, s 61HE(3(a)). The jury were also given a “Mahmood Direction” (Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1) in relation to the absence of evidence from Mr Duong as follows:

3. [7]

   This Court’s assessment of the applicant’s sole ground of appeal must be undertaken in a manner consistent with these directions (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [91]; “Pell”). To address that ground it is necessary to summarise the evidence adduced at the trial with particular reference to TN’s evidence. The evidence of the police and forensic witness called by the Crown is only briefly noted. Other than as described, their evidence did not materially add to the strength of the Crown case.

4. [8]

   TN was born in Vietnam in 1997 and came to Australia in February 2019 just prior to her 22nd birthday. The events the subject of this application occurred just over two months after her arrival. At the trial in October 2020 TN gave evidence through an interpreter although she answered some questions in English as well. At various points there were difficulties with the translation.

5. [9]

   TN said that she used a social media application known as “Zalo”, which is similar to “Facebook”. She said that through that application she first communicated with the applicant. TN said that on 18 April 2019 the applicant sent her a message asking her to “go to a movie with him”. She responded that she wanted to “go to [a] Vodafone [outlet] in Cabramatta, because I [have] never venture[d] out of Paramatta”. She said she gave her address to the applicant and he arrived at around 6.30pm. TN said that the applicant asked her if she wanted to go to Bondi Beach and she agreed but instead he took her to a “closer beach and there was a gaol near there”. TN said the applicant stopped at a house to collect some money while she waited in the car. When he returned, he resumed driving and he held her hand even though she tried to push his hand away.

6. [10]

   TN said that when they arrived at the beach, they left the car and started walking. At some point the applicant asked her a question which was translated as “[d]o you want to sit on my body?”. TN said she was cold and there were stones around and she replied “[o]kay, I agree to sit on your body but I do not want to do anything else”. TN said that the applicant then hugged and kissed her. TN said she felt uncomfortable. She told the applicant “I don’t like”. She pushed him away, stood up and said “[n]ow, we should return to our home” adding that she felt a “little bit hungry”.

7. [11]

   TN told the jury they returned to the car and the applicant asked what she wanted to eat. TN said they drove to a Thai restaurant which was closed and then drove to another restaurant in Marrickville. At that restaurant, she took a photograph of her meal which bore the time 9.10pm. TN said she told the applicant she wanted ice cream and he drove her to Strathfield. However, the ice cream shop at Strathfield was busy so they drove to Bankstown. They arrived at around 10.30pm. After they finished the ice cream TN said she wanted to go home. TN told the jury (in English) that the applicant told her he needed to “go to his garage to change car and then he will take me home”. The applicant then drove her to an undercover carport at a block of units in Cabramatta which she described as “his garage”.

8. [12]

   The applicant parked the Lexus motor vehicle he was driving in front of a Subaru motor vehicle. TN said that the applicant stated that the Subaru vehicle was loud and she told him to drive her home in the Lexus. Despite that, the applicant told her to move her belongings to the Subaru. She said they moved to the other car and she said, “[n]ow we go home”. However the applicant said “I – now I feel very sleepy, and now how about get into my unit to have a sleep, and tomorrow morning I, I will take you home early in the morning”. She replied “[n]o. If you feel sleepy, then you can sleep for a while and I waiting for you.” He agreed and slept for a period during which she sent a message to her flat mate, Linh Tran, that “I am okay”. She told the jury that she wanted to go home and agreed with the suggestion that she was not interested in “anything sexual with him”.

9. [13]

   The applicant slept for around an hour. TN filmed him for a period of time and sent the video to Ms Tran. Around 12.31am she sent Ms Tran a text message that stated, “[w]e are in the car, he’s sleeping”. TN shook the applicant’s shoulder and told him to “wake up” twice. He woke up but said “I want to sleep again” and she continued using her mobile phone. TN said that the applicant suddenly woke up and “pushed the chair down or backward a little bit”. By this time the applicant had “already got into my chair” and “my face was very close to his face”. TN felt uncomfortable. She said that “I shouted out ‘what? What do you do?’”. The applicant then “put his body down to me and then he tried to take my underpants off”. By this time her seat was fully reclined and she said “[p]lease do not do it”. She told him she was frightened. She attempted to push him away but he grabbed both her wrists and pushed them onto her head and used his other hand to “penetrate my private part” (i.e. her vagina). He removed her underpants and she felt pain from the applicant penetrating her with his penis. TN told him to use a condom and the applicant told her there was a condom inside his unit. She refused to enter his unit. TN told the jury that she thought that if they went to his apartment “things will [get] worse”. She said she “did not resist so violently because I am afraid that he could use violence against me”.

10. [14]

    TN said the applicant continued to penetrate her but then removed his penis, wiped it with a tissue and penetrated her again. TN said she struggled and said “[p]lease stop, stop it. You are hurt[ing] me”. TN said she was penetrated the second time for “[a]bout one minute” and the assault was “[a]bout 15 minutes in total”. TN said she cried out “loudly” and the applicant kissed her neck leaving two marks. TN said she discovered the marks when she went home. She took photographs of the marks.

11. [15]

    TN said that after the assault she got dressed. She did not say anything, but the applicant said “[o]kay, now go home”. They returned to the Lexus and the applicant asked her if she was hungry. TN said she was, and he drove her to a Vietnamese bakery. TN said she stayed in the car while the applicant was in the bakery. She said she was “panicked and frightened” and used her mobile phone to take a photograph of him in the bakery. The photograph was tendered and bore the time 1.56am. The applicant then drove TN to her unit in Parramatta. She had a shower and went to bed.

12. [16]

    The Crown then tendered a series of text messages between TN and the applicant for the period from 18 April 2019 to 24 April 2019. In her evidence in chief, TN was referred to the following text messages sent on 19 April 2019:

13. [17]

    TN was asked about her request to the applicant to take her to sign up a “plan” (being a reference to attending a mobile phone retailer). TN denied that she was in fact interested in seeing the applicant (“No, I, I never”) but instead said she sent the text to:

14. [18]

    As will become clear, a significant aspect of the appeal concerns whether the text messages sent by TN after the early hours of 19 April 2019 undermined her credibility and reliability. In her evidence‑in‑chief, TN was asked as follows:

15. [19]

    TN told the jury that she had spoken to her ex-boyfriend, Mr Duong, who was in Vietnam. She said that, after they spoke, he sent a message to her flatmate, Ms Tran. TN said that “in the morning after I wake up” Ms Tran asked her to get changed and they went to Parramatta police station on 23 April 2019.

16. [20]

    The translation of the above answer in Vietnamese that led to the words “threaten me” being included in the transcript became an issue in the trial. The Crown called another Vietnamese interpreter who listened to the audio recording of TN’s evidence. He confirmed that TN did not use the Vietnam equivalent of the word “threaten” but instead said “[h]e asked me again and again”.

17. [21]

    TN’s (best) explanation for her actions in that period prior to speaking to her ex-boyfriend on 22 April 2019 was elicited in re-examination as follows:

18. [22]

    The cross‑examination of TN took place over a number of days, although it was interrupted by breaks in the proceedings. As the grounds of appeal are focused on the text messages it is necessary to outline the cross‑examination concerning their content in some detail.

19. [23]

    The cross‑examination addressed the exchange of messages noted above (the so-called “first message”). It was suggested that TN would not communicate with the applicant if he had sexually assaulted her the night before. TN said that at that time she had no intention to report him to anyone and instead she intended to keep “silent and … tried to act that way”, that she “didn’t want to do anything that, that showed the abnormal” and she “wanted to know what [the applicant] would say or do”.

20. [24]

    The applicant’s submissions placed emphasis on the following answers:

21. [25]

    The last answer involves TN correcting the interpreter by making it clear that she wanted her flatmate and not the applicant to take her to the mobile phone outlet. When that is understood these answers are completely consistent with what TN said in her evidence in chief and re-examination about why she sent the text messages she did in the period after the early hours of 19 April 2019. Contrary to the applicant’s submissions, TN was not denying that those text messages may have suggested to the applicant that she might be interested in seeing him again. However, TN stated that was not what she in fact wanted. TN said that she exchanged messages because she wanted to learn of the intentions of the man who had sexually assaulted her. She had regretted the situation she placed herself in and had decided at that point to stay silent. However, for her own reasons, she wanted to know whether the perpetrator of a sexual assault against her had only used her to satisfy his sexual desire or whether he also might have had some interest in her as a person. In the aftermath of a traumatic sexual assault that is not an inherently improbable or even unlikely explanation for a victim’s state of mind, especially a victim who, at that point, had decided to stay silent and live with regret for placing herself in danger.

22. [26]

    The cross‑examination from this point about this message proceeded on a basis that repeatedly ignored TN’s explanation for the messages. Hence there were repeated attempts to have TN accept that her text message was an invitation for the applicant to meet her and TN stating that that was not what she intended. Ultimately the applicant’s submissions assert that the following exchange involved “concessions” on the part of TN:

23. [27]

    The answers in bold are those the applicant contends amounts to some form of “concession” by TN presumably to the effect that she consented to sex during a “one night stand” and then later regretted it when she determined that the applicant had simply used her for sex. The final answer responds to a question that contained three negatives (“didn’t”, “weren’t” and “wasn’t”) such that the answer is meaningless especially when translated from Vietnamese. Leaving that aside, it was undoubtedly the defence theory that TN consented to sex during a “one night stand” but later regretted it. The text messages provided some support for that and it was an issue for the jury to consider. However, TN did not make any “concession” to that effect. In the context of TN’s evidence, in her mind, a “one night stand” could mean non‑consensual or consensual sex. Overall TN’s evidence was consistent, namely she did not consent but initially decided to stay silent. She did not wish to see the applicant again but wanted to know if he, at the time he sexually assaulted her, had any interest in her beyond sex.

24. [28]

    After the text messages noted above there was no further contact until 21 April 2019 when the applicant texted her in the morning asking, “what are you doing now?” The second set of messages relied on by the applicant are the following, which is part of an exchange that commenced at around 11.30pm that night:

25. [29]

    The applicant referred to the following passage in TN’s cross‑examination concerning these messages as supportive of his case on consent:

26. [30]

    Although not expressly stated, I understand that the applicant contends that these passages involve concessions by TN that she wanted to meet up with the applicant, have a meal with him and “hug” him, but she was not agreeing to kiss him or have sex with him. There is no doubt that the text messages are capable of conveying that. However, at the risk of repetition, TN’s evidence was that she did not want to see him again but sent the text messages to elicit from the applicant whether he had any interest in her other than sex. Her agreement to various propositions in the above extract is to what the messages say rather than what she intended.

27. [31]

    The third set of messages are part of the same exchange on the evening of 21 April 2022 as follows:

28. [32]

    The applicant pointed to the following passage from TN’s cross‑examination concerning the first section of this exchange:

29. [33]

    The last three questions in this extract are telling in that they confirm that the questions were not engaging with the witness’s answer. TN agreed that if she had had non‑consensual sex with the applicant she would not want to see him again. However, TN was also trying to explain in her evidence that she did not want to see the applicant again and did not agree to see him again. As already stated, her texts were designed to elicit from the applicant whether he had any interest or feelings towards her other than in relation to a ‘desire’ for sex. Hence, she agreed that her text was “suggesting” to him that if they were in love then she would be prepared to have sex but she denied that is what she wanted to happen. That answer was given in the context of her explanation that, to her understanding, in Vietnamese culture, sex should “happen … in a relationship only”.

30. [34]

    Like the other passage noted above, this first portion of the text messages set out in [31] provided support for the defence case. However, equally TN gave an explanation for them that was entirely consistent with her having not consented to the sexual act with the applicant and which, in her circumstances, was not inherently improbable or even unlikely. The assessment of the effect of those text messages in light of TN’s explanation was quintessentially a matter for the jury. In that regard, the second portion of messages set out in [31] where TN pointed out the applicant’s lack of response to her message about driving her to the mobile phone outlet is very much consistent with her evidence about the purpose for which she exchanged messages with the applicant. Lastly, the reference to “why did you do that to me” in the concluding set of messages in [31] is very much supportive of TN’s evidence that she was sexually assaulted. According to the evidence at the trial, that message was sent well before TN spoke with Mr Duong.

31. [35]

    The applicant’s submissions contended that this aspect of the evidence was capable of “rais[ing] a doubt as to the [applicant’s] knowledge of the victim’s consent”. During the argument on appeal it was accepted that that submission has, as an intermediate step, the proposition that the text messages cast doubt on the credibility and reliability of TN. This must be so because, according to TN’s version of events, the applicant could not have been in doubt that she was not consenting throughout the sexual intercourse that took place in the Subaru vehicle.

32. [36]

    Linh Tran was TN’s roommate. Ms Tran and TN knew each other in Vietnam. Ms Tran arrived in Australia in July 2018. She recalled receiving the text message from TN with video footage of the applicant sleeping at around 12.31am on 19 April 2019. She exchanged messages with TN. In one of the messages Ms Tran sent, she told TN to be careful. Ms Tran said that the next morning, she woke up and TN was asleep in her bed. She next saw TN in the evening at around 9.30pm. TN was cooking and did not say anything about the applicant. Ms Tran said that throughout “the next few days” TN was acting normally.

33. [37]

    Ms Tran said that in the early hours of 23 April 2021 she received a “Facebook” message from TN’s ex-boyfriend, Mr Duong, telling her to take TN to the police station. Ms Tran recalled that TN told her that the applicant “put a car seat backward and [held] her firmly”. In cross‑examination Ms Tran accepted that she was contacted by TN’s “boyfriend” and that he spoke about plans to get married to TN and how he was building a house in Vietnam. However in re-examination Ms Tran said “I didn’t know about their relationship” and had not discussed it with her while she was in Australia.

34. [38]

    A statement from a police officer was read to the jury which confirmed that TN and Ms Tran attended at the police station at around 9.15am on 23 April 2019. Police inquires revealed that a Lexus and a Subaru Liberty were registered in the applicant’s name.

35. [39]

    The applicant was arrested during the evening of 25 April 2019. He was told that the arrest concerned a sexual assault in his car “about a week ago”. The applicant replied “[w]hat sexual assault”. The officer referred to “an incident that occurred about a week ago” and told him he was under arrest “for a sexual assault that occurred about a week ago, in this car, here in this car park.” He replied, “I know but I didn’t force her to”. The applicant declined to be interviewed.

36. [40]

    Sperm cells were detected in the crotch area of TN’s underpants. DNA recovered from the underpants was a mixture originating from at least three individuals, and the major component had the same profile as the applicant, while the minor components could not be tested. DNA taken from the bra was a mixture of at least two individuals. The DNA from the major component was female and the applicant could not be excluded as a contributor to the minor component. (TN did not provide a reference sample).

37. [41]

    Two DNA samples (A & B) were located and obtained from the front passenger seat of the grey Subaru Liberty. Both samples indicated a positive result on the presumptive test for semen. A confirmatory test was subsequently performed, and sample A indicated positive for the presence of human semen. Sample B was not tested due to its close proximity to sample A. Samples B and C were forwarded for DNA testing. The DNA recovered from sample A had the same profile as the applicant.

38. [42]

    The officer in charge was asked about the inquiries he made to locate Mr Duong. He said that in December 2019 TN said that her relationship with Mr Duong was over, however she provided the officer with Mr Duong’s Facebook profile, which included a mobile phone number. The officer attempted to send a message to Mr Duong on Facebook but could not confirm it was sent. He did not receive a response. In cross‑examination the officer agreed that the evidence of TN’s first complaint was a “very important part of this case”. However, he said he did not attempt to contact Mr Duong until December 2019 because he thought “we had enough evidence”. He agreed that he did not make any inquiry other than the attempt to send a message via Facebook.

39. [43]

    The applicant gave evidence. In light of the approach to this ground outlined in Pell his evidence can be summarised briefly. It was clearly rejected by the jury.

40. [44]

    The applicant’s description of the chronology and timing of events did not differ in substance from that given by TN. By the time he collected TN on the evening of 18 April 2019, the mobile phone store was closed. The applicant said that TN suggested they drive to Bondi Beach but then when he realised how long it would take, he suggested they drive to La Perouse. During the drive he asked to hold her hand but she was shy and so he did not. Later he asked TN to hold hands again and she put her hand near his which he took as a “yes to let, let me hold her hands”.

41. [45]

    The applicant said that he and TN went for a walk along the rocks at La Perouse beach. At one point he put his hands on her hips “and she kind of twist away” which he took as her being “shy”. When he sat on some rocks she agreed to sit on his lap. TN even leant on his shoulder and he asked to kiss her. He said that her face leaned towards him which he took as a yes and so he kissed her for 30 to 60 seconds before she said, “I’m a bit shy” and he stopped. They then returned to the car and drove to dinner. The applicant said that they held hands in the car during the drive to Marrickville.

42. [46]

    The applicant said that around 10.30pm, after they had dinner and ice cream, he asked TN where she wanted to go. He said TN replied “[w]hatever, like anywhere” and that she did not need to be home before 11pm as her friend was out. The applicant said she agreed to travel to his place in Cabramatta to look at his Subaru. In cross‑examination the applicant denied that he told TN he wanted to change cars or that he took her to his place to have sex.

43. [47]

    The applicant said that he showed TN his Subaru. He said they talked for around five minutes. He said that he became tired and slept for 30 to 45 minutes and later woke up to see TN sending a text message. The applicant said he leaned towards TN and asked if he could kiss her. He said she did not reply but leaned towards him and they kissed. The applicant said he asked her “[d]o you want to do it” and she replied, “I’m a bit shy”. He said she asked if he had condoms and he said he had some upstairs. The applicant told the jury that TN said she did not want to go to his apartment because she would embarrass herself in front of his family. The applicant said he asked her to take off her underwear. She lifted up her hips and took them off “halfway” legs. The applicant said that while he was having sex with TN, he gave her “hickeys” and that just before he was about to ejaculate, he withdrew his penis and ejaculated on a tissue. The applicant said that TN said it “hurt a bit” but he asked her “do you want to do [it] one more time”. TN agreed and they had sex again. He said he stopped because he thought he was hurting her. The applicant said they got dressed, held hands in the car for a while and he drove her home, stopping to get some food on the journey. The applicant said that just before TN got out of the car, she said she was going out with “one or two guys next two, three days later”. He said “[a]ren’t we in, in relationship right now … [w]hy, why do you have to go with them for?’ and she replied “I don’t know. Let me have a think about it, if we are in a relationship”.

44. [48]

    The applicant was asked:

45. [49]

    The applicant said that he was not confused by the messages sent by TN in the following days. He said he thought her reference to “[n]o kiss, no sex” in the message set out above ([28]) was “normal … cause I … [wanted] to get to know her more”.

46. [50]

    In cross‑examination the applicant said he removed TN’s bra from the back but was then shown the photograph of TN’s bra which unfastens from the front. He denied that it was the right bra. He agreed that he saw a look on TN’s face that indicated she was being hurt while they were having sex. He disagreed that was because TN was uncomfortable.

The Appeal

1. [51]

   As noted, the sole ground of appeal is that the verdict was unreasonable and could not be supported having regard to the evidence.

2. [52]

   The principles applicable to this ground so far as this case is concerned were enunciated in M v The Queen (1994) 181 CLR 487 at 493 to 495 per Mason CJ, Deane, Dawson and Toohey JJ; [1994] HCA 63 (“M v The Queen”). This Court must ask itself whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so this Court must pay full regard to the “consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and “the consideration that the jury has had the benefit of having seen and heard the witnesses”. Their Honours held (at 494):

3. [53]

   In acknowledging the advantage enjoyed by the jury, this passage reflects the “special respect and legitimacy [accorded] to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials” (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; “MFA” at [59] per McHugh, Gummow and Kirby JJ), an aspect of which is that juries are “usually well able to evaluate conflicts and imperfections of evidence” (MFA at [96]). In Pell the Court explained this Court’s role as follows (at [39]):

4. [54]

   The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is given by a complainant such as TN. Thus, this Court’s assessment proceeds on the basis that the jury found her evidence to be credible and reliable.

5. [55]

   The applicant’s submissions contended that the jury should have entertained a reasonable doubt as to the proof of the applicant’s guilt for three related reasons. First, the submissions contend that the “contemporaneous record created by the [text] messages … [meant that] the jury must have been left with a doubt as to the knowledge element of the [s 61I] offence”. Second, the submissions contend that the jury were in no better position to this Court to discount the “residual doubt” created by the messages. Third, it was submitted that the failure of the prosecution to investigate, contact or call Mr Duong to give evidence must have left the jury with a doubt as to TN’s evidence.

6. [56]

   The submissions in relation to the first contention are focused on the “knowledge” element of the offence. As already noted, in light of TN’s evidence that before her vagina was first penetrated by the applicant, she resisted and told him “please do not do it”, that contention only makes sense if what is contended is that the jury’s assessment that TN was credible and reliable was undermined in a manner consistent with the above passage from Pell.

7. [57]

   The submissions in support of this contention relate to the three portions of the messages between TN and the applicant in the period from 19 to 21 April 2021 that have already been addressed. As explained, the applicant’s submissions fail to address TN’s explanation for why she sent the messages. As already stated, there was nothing inherently improbable or even unlikely about that explanation. In Rao v R [2019] NSWCCA 290 at [98] Gleeson JA, with whom Harrison and Cavanagh JJ agreed, observed:

8. [58]

   This passage reflects one of many similar recent observations of this Court about the necessity to avoid using stereotypical assumptions about how victims respond to the trauma of sexual assault in addressing challenges to a jury’s verdict (see Neto v R [2020] NSWCCA 128 at [79] and Maughan v R [2020] NSWCCA 51 at [99]).

9. [59]

   In this case, the jury had the opportunity to observe TN give her evidence spread, as it was, over four days. Amongst other matters, the jury had the opportunity, which this Court did not, to assess her description of these events including her explanation for the text messages in the context of her age, her cultural background, her relatively recent arrival in Australia and her limited command of English. They were all matters that suggest that the “full allowance” that must be given to the “advantages enjoyed by the jury” (M v The Queen supra) is relatively wide in a case such as this.

10. [60]

    One aspect of the applicant’s submissions in relation to the second contention is to the effect that any doubt created by the content of the messages is “a separate consideration to any assessment of any particular witness that gave evidence at the trial”. I do not agree. Unlike the undisputed evidence about the physical configuration of a church and the procedures usually adopted during a church service that were considered in Pell (at [57], [118] to [119] and [127]), the messages are not a body of independent objective evidence that somehow renders TN’s evidence less likely. Instead, they are statements by TN that were potentially inconsistent with her evidence. As I have already explained, the jury had a significant advantage over this Court in evaluating her explanation to determine whether they were in fact inconsistent or otherwise cast doubt on TN’s credibility or reliability.

11. [61]

    In light of the explanation that TN proffered to the jury for the text messages, I do not consider that the text messages raise a doubt about her credibility or reliability. Even if they did, it would only be a doubt that the jury's advantage in seeing and hearing her evidence was capable of resolving.

12. [62]

    The balance of the second contention in support of this ground is that certain observations of the trial judge, who also had the benefit of observing TN’s evidence, undermine any suggestion that the jury had some unique advantage in that regard. The applicant’s submissions point to two occasions during the trial when, in the absence of the jury, the trial judge expressed doubt about the strength of the Crown case because of the content of the text messages. At one point, before TN’s re-examination started, her Honour suggested to the prosecutor that the messages “destroy the Crown case” and queried whether the matter had “been to the [D]irector’s chambers”.

13. [63]

    In Pell, their Honours described the passage from M v The Queen set out above (at [51]) as one which reflected “the functional or ‘constitutional’ demarcation between the province of the jury and [an intermediate appellate court]” (at [38]). In a trial before a jury another such functional or constitutional demarcation of no less importance is between the jury as the judges of the fact and the presiding judge as the judge of the law. Thus, in Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191, Bathurst CJ, with whom Bell P and Hamill J agreed, held at [294] to [295]:

14. [64]

    It follows that the appellant’s submission that, the trial judge’s observations of the strength of the Crown case made in the absence of the jury, somehow deny the jury any advantage in the evaluation of TN’s explanation for the messages must be rejected. There was nothing improper in the trial judge making the observations that her Honour did in the absence of the jury. However, they were made in a context where her Honour accepted that the evaluation of TN’s evidence, including the effect of the text messages, was a matter for the jury. On appeal, that evaluation is to be undertaken by this Court but in a manner consistent with M v The Queen and Pell. The trial judge’s observations are irrelevant to that task.

15. [65]

    The third aspect of the applicant’s ground of appeal concerns the “failure of the police to investigate, contact, or call” TN’s ex-boyfriend. The submissions identified three aspects of TN’s evidence that the applicant contended were “critical”. The first of those was whether the person contacted was TN’s boyfriend or ex-boyfriend when she spoke to him after allegedly being sexually assaulted by the applicant. The submissions referred to Ms Tran’s evidence that, to her understanding, TN and Mr Duong were in a relationship at the time of the assault, something that TN denied. The second matter was the role of Mr Duong in apparently threatening or encouraging TN to go to the police. The third matter was said to be a “motive to lie” that allegedly “emerged from the future plans of [TN] and Mr Duong” and was said to be evident from a passage from the cross‑examination of Ms Tran where she recounted being told by Mr Duong that he was building a house in Vietnam and had plans for him and TN to get married.

16. [66]

    Although the alleged “motive to lie” was said to have emerged, it was never articulated at trial nor in the applicant’s submissions. As best as I can ascertain the unarticulated motive appears to be that TN lied to Mr Duong by telling him that she had non-consensual sex with the applicant to preserve their relationship and he “threatened” or encouraged her to report it to the police, which she felt compelled to do. If that is the alleged motive to lie it suffers from the obvious defect that nothing of the kind was ever suggested to TN when she gave evidence. Further, the theory does not make sense because, if TN had consensual sex with the applicant but wished to preserve her relationship with Mr Duong, then it is most likely she would not have mentioned the applicant at all. The theory has no real evidentiary support in that Ms Tran confirmed that she had no direct knowledge of whether TN and Mr Duong were in a relationship. The submissions in support of this contention also did not account for the clarification by the interpreter of TN’s evidence in that she did not say that Mr Duong threatened her but instead only that he asked her “again and again”. Otherwise, I note that in her text message sent late on 21 April 2021, TN asked the applicant “why did you do that to me”. The message was sent the day before TN spoke to Mr Duong.

17. [67]

    TN’s evidence was that she had an “on and off relationship” with Mr Duong but they had already parted by the time of the assault. The fact that Mr Duong may have still hoped that the relationship would resume and told Ms Tran about his hopes is neither unusual nor inconsistent with TN’s evidence. TN and Mr Duong were clearly close. TN’s evidence simply conveyed that he became aware that she was upset, inquired of her about what happened, encouraged her to speak to the police and requested that her roommate help her.

18. [68]

    The jury were instructed to consider the absence of evidence from Mr Duong when determining whether the Crown had proven its case beyond reasonable doubt. There was nothing raised by the evidence about Mr Duong to suggest that his absence from the witness box meant that the jury “ought … to have entertained a reasonable doubt as to proof of [the applicant’s] guilt” (Pell supra).

Proposed Orders

1. [69]

   I propose the following orders:

2. [70]

   R A HULME J: I agree with Beech-Jones CJ at CL.

3. [71]

   ADAMSON J: I agree with Beech-Jones CJ at CL.