Shanmugam v R

1. [1]

   HARRISON J: Mithun Shanmugam was found guilty on 27 August 2020 by his Honour Haesler SC DCJ following a judge alone trial on five counts as follows:

2. [2]

   Mr Shanmugam was sentenced by his Honour on 17 September 2020 to an aggregate term of imprisonment of 5 years with a non-parole period of 3 years.

3. [3]

   Mr Shanmugam now appeals to this Court against his conviction and sentence on three grounds as follows:

The Crown case

1. [4]

   Mr Shanmugam, sometimes referred to in the evidence as “Matt’, and the complainant, “Susie”, worked together at a function centre in 2018 and early 2019. Mr Shanmugam was employed there as a waiter and manager. On the evening of 6 January 2019, the owners of the function centre organised a belated Christmas party for the staff at a local venue in Wollongong. It is uncontroversial that at least Mr Shanmugam, Susie and Claudia Farrugia ended up back at Susie’s flat at what appears to have been the early hours of the following morning.

2. [5]

   Susie gave the following evidence:

3. [6]

   Mr Shanmugam and Susie smoked cannabis and watched a movie downstairs before he suggested that they watch it upstairs. Ms Farrugia, who had been taken to the flat earlier in the night, came downstairs and watched the movie as well.

4. [7]

   Susie and Ms Farrugia showered while Mr Shanmugam lay on Susie’s bed. Shortly thereafter, while he was showering, Ms Farrugia told Susie that Mr Shanmugam had asked her to sleep downstairs on the couch so that he and Susie could have the room to themselves. Susie said to Ms Farrugia, “Please don’t leave me alone”.

5. [8]

   Mr Shanmugam asked Susie if it was alright if he wore boxer shorts to bed as it was hot. She indicated that she did not care. The three of them then went to sleep with Mr Shanmugam located between the two women.

6. [9]

   Susie woke about 9am to the sound of Ms Farrugia vomiting in the bathroom. Ms Farrugia then returned to the bed. Susie said that Mr Shanmugam “pulled the sheets from under me and started moving his legs towards mine”. She noticed at about this time that he had an erection and that he was masturbating in the bed. Ms Farrugia once again left the bed to continue vomiting in the bathroom. At this time, Mr Shanmugam rolled over and started to masturbate against Susie’s bottom. This constituted Count 1 on the indictment.

7. [10]

   Mr Shanmugam then attempted forcefully to press his penis into Susie’s anus, moving her night shorts to one side for this purpose. This constituted Count 2 on the indictment. Mr Shanmugam then put his hand down the front of Susie’s shorts and rubbed the exterior of her vagina with his hand. This constituted Count 3 on the indictment.

8. [11]

   Susie said that she brushed Mr Shanmugam away, rolling onto her side. She said she was in shock and did not really know what to do. Mr Shanmugam then pulled her night shorts to the side and partly inserted his penis into her vagina, when Susie “quite abruptly” brushed him away. This constituted Count 4 on the indictment.

9. [12]

   Mr Shanmugam then reached over the side of the bed to retrieve a condom. Susie took the opportunity to send a text message to Ms Farrugia. She said, “I flicked it [i.e. the phone] under the bed as quick as I could”. Mr Shanmugam had the condom on by then and Susie was waiting to hear from Ms Farrugia. At that point Mr Shanmugam inserted his penis in her vagina again, “but this time all the way in”. This constituted Count 5 on the indictment.

10. [13]

    Susie sent a text message to Ms Farrugia at 9.12am. It said “Help”. Ms Farrugia did not respond.

11. [14]

    Susie pulled away from Mr Shanmugam and then heard Ms Farrugia cough in the bathroom. Susie asked her if she was okay but heard no response. Susie said to Mr Shanmugam that Ms Farrugia had been in the bathroom for a while and he replied, “No, she will be.” Susie then lay back down, and Mr Shanmugam inserted his penis in her vagina again. These events were uncharged.

12. [15]

    Susie then got up and took Ms Farrugia downstairs. Susie realised that Ms Farrugia’s phone was still in the bedroom and went back upstairs to get it.

13. [16]

    Susie then told Ms Farrugia what had happened, complaining about Mr Shanmugam’s behaviour. She also complained to Maria Di Maggio on the same day.

14. [17]

    The Crown case was also based upon the content of a series of text messages between Mr Shanmugam and Susie that began at 2.51pm on 7 January 2019. Despite their length, it is necessary for present purposes that they be reproduced here:

15. [18]

    Mr Shanmugam also sent text messages to Ms Farrugia. These began at 3.06pm on the same day and are reproduced as follows:

16. [19]

    Finally, Susie and Ms Farrugia exchanged text messages starting at 9.12am in the following terms:

Ground 1

1. [20]

   The trial judge relied upon Susie’s account of what occurred to convict Mr Shanmugam on all five charges. It was submitted on behalf of Mr Shanmugam that there was an inherent inconsistency and implausibility in Susie’s accounts that should have raised a reasonable doubt in the mind of the trial judge. He contended that the different and changed versions given by Susie raised the substantial possibility that the trial judge was mistaken in accepting her evidence to the required standard.

2. [21]

   Mr Shanmugam contended that Susie’s evidence that she sent the text message to Ms Farrugia saying “Help” at 9.12am, which she maintained was when the offences were occurring, did not accord with her evidence that the offences took place a short time after she awoke at about 5am. Susie gave the following evidence about the timing of the offences:

3. [22]

   Mr Shanmugam submitted that this evidence about the timing of the offences does not make sense “when looked at rationally”. He submitted that if she woke at 5am and was the victim of multiple sexual assaults and sexual touching a short time later, her text message at 9.12am “must have been for some other reason”. He submitted that if there is doubt as to when the offences are said to have occurred, then there must also be a doubt as to whether Susie’s account is reliable.

4. [23]

   The difficulty with that submission is that Susie unambiguously accepted that her original understanding or recollection that the offences occurred at 5am was not necessarily accurate. Indeed, the believability of her account is on one view enhanced by the fact that she did not purport to correlate the offences with the text message in a way that she could have if she were minded to fabricate a version that eliminated the type of discrepancy that Mr Shanmugam’s current submission seeks to exploit.

5. [24]

   In any event, the trial judge’s resolution of this allegedly significant discrepancy is coextensive with his acceptance of Susie’s evidence and his rejection of the evidence of Mr Shanmugam. His Honour’s assessment of Susie was in the following terms:

6. [25]

   By contrast, his Honour’s assessment of Mr Shanmugam was as follows:

7. [26]

   Mr Shanmugam drew upon the wisdom enshrined in what was said by Brennan J in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 at [11]:

8. [27]

   His Honour gave himself a direction in accordance with this authority.

9. [28]

   I have reviewed the whole of the evidence in the trial. In particular, having regard to Mr Shanmugam’s submissions about it, I have also paid particular regard to the evidence of Ms Farrugia, Ms Di Maggio and Giuseppe D’Acunto. With respect to Ms Farrugia, Mr Shanmugam submitted that in the text messages she sent to him, the highest that the allegation got was that he “tried to have sex with her”. With respect to Ms Di Maggio, Susie told her that Mr Shanmugam had assaulted her that morning, whereas Ms Di Maggio only recalled being told by her during a phone call on the day of the events in question that he had “felt her up”. Ms Di Maggio also said that later in the week Susie disclosed that “he raped” her. Finally, Mr D’Acunto said that he was told by Susie that Mr Shanmugam had “throughout the night physically touched her”, was “inappropriate” and that he “tried to force himself on her”. Mr D’Acunto confirmed that Susie told him that in his evidence in the trial. However, in cross-examination, Mr D’Acunto admitted that in the statement he provided to the police some eight months before giving evidence, he did not mention being told about Mr Shanmugam or that he had touched Susie at all. Mr Shanmugam contended that these matters were inconsistencies or discrepancies that affected the reliability of Susie’s evidence.

10. [29]

    In Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at [19], the majority said this:

11. [30]

    Having independently examined all the evidence, I consider that it was clearly open to his Honour to be satisfied beyond reasonable doubt as to Mr Shanmugam’s guilt on all counts. In expressing that opinion, I necessarily put aside the importance or significance of any advantage that his Honour may have enjoyed in seeing and hearing the witnesses at the trial. My assessment can by definition only be made upon the more limited review of the transcript of evidence and the exhibits in the proceedings.

12. [31]

    The evidence given by Susie is compelling. She has not in my view been shown by cross-examination or otherwise to be unreliable or untruthful or to have resiled from her version of what occurred. The fact that Mr Shanmugam ended up sleeping in her bed says nothing about her insistence that the matters of which she complained were not consensual. Indeed, the terms and tone of the text message exchange between them later the same day are highly supportive of the fact that Susie did not consent to any sexual activity with him and that he well understood it. It was clearly open to his Honour to reject Mr Shanmugam’s account of the events to the effect that it was Susie who insisted that he stay and sleep in her bed after he said he was going home or that it was Susie who had initiated the “cuddling” with him.

13. [32]

    The evidence in my opinion was sufficient to establish that it was open to the trial judge to be satisfied beyond reasonable doubt that Susie was the victim of five instances of sexual or indecent assault.

14. [33]

    I note in passing that his Honour’s analysis of the evidence was thorough, logical and persuasive. However, it is no part of this Court’s inquiry to determine whether his Honour’s decision was “correct”. The present inquiry is directed to the assessment of whether his findings were not reasonably open. In this respect I gratefully adopt what was said by Davies J in RP v R [2015] NSWCCA 215 at [48] and [52] as follows:

15. [34]

    In the present appeal, no suggestion is made that his Honour made a discrete error that invalidated his reasoning processes or vitiated his conclusions. Mr Shanmugam understandably directed his attention to the single question of whether his Honour’s findings were not reasonably open. In the case of an appeal from the decision of a judge alone contending that the verdicts are unreasonable, this Court is inevitably provided with the decision of the trial judge. It is in that sense artificial to maintain that any such judgment will not be informative and at least potentially influential in the decision of this Court. In the way identified by Davies J, the reasoning of a trial judge sitting without a jury is material available to this Court that assists it permissibly to identify the matters that have been taken into account or considered in making relevant findings.

16. [35]

    As Adamson J emphasised in Williams v R [2021] NSWCCA 25 at [190],

17. [36]

    Even though I am satisfied that his Honour’s conclusions were sound, I wish to re-emphasise that, having considered the evidence myself, I am otherwise independently satisfied that verdicts of guilty on all five counts were open to him.

18. [37]

    I would dismiss Mr Shanmugam’s first ground of appeal.

Ground 3

1. [38]

   Section 165B of the Evidence Act 1995 is in the following terms:

2. [39]

   It is not in contest that his Honour “failed” to give himself a warning in accordance with this section. That is unsurprising having regard to the fact that he was sitting without a jury and that he was not asked to consider giving such a direction. The latter consideration means that Rule 4.15 is engaged.

3. [40]

   Mr Shanmugam submitted notwithstanding these matters that his Honour erred in not giving himself a direction regarding prejudice caused to him arising from the delay in the making of the complaint to the police. Susie reported the matter to Constable Louise Phillips on 14 January 2019, or 8 days after the incident, after taking a week of unpaid leave from work. Mr Shanmugam was later arrested and participated in an interview with the police on 17 January 2019 in which he asserted that he had used a condom that was discarded at the apartment. Mr Shanmugam maintained that forensic examination of the condom could have provided supporting exculpatory evidence on his account that he did not have penile/vaginal intercourse with Susie and that her DNA would not have been present on the exterior of the condom.

4. [41]

   Although counsel for Mr Shanmugam did not ask for the direction in question, he did make submissions concerning delay in these terms:

5. [42]

   This Court was referred to its decision in Binns v R [2017] NSWCCA 280 in which there had been a delay of four and a half years between the alleged offence and the first complaint. A “focus of the appeal” was that if complaint had been made within days of the alleged incident, there may have been available DNA evidence to confirm or contradict the complaint. The Court found at [22] that:

6. [43]

   In R v Shanmugam [2020] NSWDC 482, his Honour dealt with delay at [23]:

7. [44]

   However, his Honour rejected the submission by trial counsel that Susie’s delay in reporting the assaults diminished the power of her evidence.

8. [45]

   In my opinion, the fundamental difficulty with Mr Shanmugam’s submission is that he does not specifically identify the existence of any significant forensic disadvantage. The hypothetical absence of Susie’s DNA on the exterior of the condom may well have been exculpatory. Conversely, the presence of her DNA on the condom would on her account of events have been inculpatory. However, the presence of Susie’s DNA on the condom would on Mr Shanmugam’s account have inculpated him falsely. Finally, in the events that occurred, the absence of the condom for biological testing may well have resulted in a significant forensic advantage for Mr Shanmugam having regard to the evidence that his Honour accepted. At his Honour’s remove from the events in question, nothing in the trial could raise these competing possibilities to any level higher than speculation.

9. [46]

   I would refuse the grant of leave to Mr Shanmugam to raise this ground of appeal.

Ground 2

1. [47]

   Mr Shanmugam contends that his Honour’s sentence was manifestly excessive. In accordance with well recognised authority, that is a submission that the sentence that was imposed was unreasonable or plainly unjust. Mr Shanmugam promotes that contention upon the basis that his Honour erred in failing properly to take into account the principles of totality described in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]:

2. [48]

   Each count was part of a continuing course of conduct that started with sexual touching and culminated in two counts of sexual intercourse. The period over which the conduct took place was relatively short. It was arguably all part of a single course of conduct. However, in his remarks on sentence R v Shanmugam (No 2) [2020] NSWDC 555, his Honour described the offending as follows:

3. [49]

   Mr Shanmugam submitted that despite these matters identified by his Honour, there was significant overlap between or among the counts so that the aggregate sentence was excessive. In particular, Mr Shanmugam contended in effect that there was an irreconcilable tension between the length of the sentence and his Honour’s finding that the s 61I offences fell more towards the bottom of the range.

4. [50]

   Mr Shanmugam does not suggest that his Honour erred in any particular way beyond an assertion that the sentence is manifestly excessive. In this context, it is instructive to consider his Honour’s remarks concerning the structure of the sentence he intended to impose:

5. [51]

   His Honour also said this:

6. [52]

   In my opinion, his Honour’s aggregate sentence of 5 years, with a non-parole period of 3 years, was neither unreasonable nor plainly unjust. This ground of appeal should be dismissed.

Orders

1. [53]

   In my opinion, the following orders should be made:

   1. (1)

      Dismiss the appeal against conviction.

   2. (2)

      Grant leave to appeal against sentence but dismiss the appeal.

   3. (3)

      Refuse leave to rely upon ground 3.

2. [54]

   BEECH-JONES J: I agree with Harrison J.

3. [55]

   CAVANAGH J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. I only wish to add the following.

4. [56]

   In Pell v The Queen ((2020) 268 CLR 123) the Court said at [39]:

5. [57]

   In this matter, the trial judge accepted the evidence of the complainant. I have carried out my own independent examination of the record in order to ascertain whether because of any inconsistencies, discrepancies or other evidence, the trial judge ought to have ascertained a reasonable doubt as to the appellant’s guilt.

6. [58]

   In my view, the matters raised by the appellant such as the timing issue, the delay (slight) issue and the differing recollections as to the precise words used by Susie to describe what had happened are not such that, having accepted Susie’s evidence as credible and reliable, the trial judge ought to have entertained a reasonable doubt as to the appellant’s guilt.