Khamis v R; Hussain v R

1. [1]

   1 GLEESON JA: Each of the appellants, Mr Rafal Khamis and Mr Ather Hussain, seek leave to appeal from their respective conviction on one count of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). Section 61J(1) creates an offence where a person has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and knows that the other person does not consent to the sexual intercourse. Section 61J(2) defines the meaning of the expression “circumstances of aggravation” as including where the alleged offender is in the company of another person or persons: s 61J(2)(c).

2. [2]

   The appellants were each charged with four offences of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. The alleged offences occurred between 10 and 13 February 2013. The trial in the District Court at Parramatta commenced on 13 April 2015. At the conclusion of the prosecution case, the trial judge (who heard the case with a jury) entered a verdict by direction of not guilty on counts 2 and 3, there being no evidence in the Crown case in support of those counts. Each of the appellants gave evidence and called other witnesses. The jury returned a verdict of not guilty on count 4 with respect to each appellant, and a verdict of guilty with respect to each appellant on count 1.

3. [3]

   Each of the appellants was sentenced to imprisonment by the trial judge. There is no application for leave to appeal against sentence and the relevant non-parole periods of the sentences have now expired.

4. [4]

   Mr Khamis requires an extension of time with respect to his appeal. That is not opposed by the Crown and for the reasons given by Button J an extension of time should be granted.

Grounds of appeal

1. [5]

   Mr Khamis advances two grounds of appeal. The first ground is that the trial miscarried because counts 1 and 2 were not properly particularised. I agree with Button J, for the reasons given by his Honour, that this ground of appeal should be rejected.

2. [6]

   The remaining ground advanced by Mr Khamis, although expressed a little differently to the single ground of appeal advanced by Mr Hussain, raise the same issue: whether in each case the guilty verdict on count 1 is “unreasonable or cannot be supported by the evidence” relying on s 6(1) of the Criminal Appeal Act 1912 (NSW).

3. [7]

   This ground has two aspects. First, whether the guilty verdicts are unreasonable on the basis that the evidence was insufficient to establish the elements of consent, and knowledge of Mr Hussain and Mr Khamis of the absence of consent. Second, whether the jury’s verdicts are unreasonable, because, it is submitted, the not guilty verdicts on count 4 are inconsistent with the guilty verdicts on count 1.

4. [8]

   With respect to the unreasonable verdict ground of appeal, I respectfully disagree with the conclusion of Button J that the appeal against conviction by each appellant should be upheld. It follows that I do not agree with the orders proposed by his Honour to the extent that those orders include that the conviction of each appellant be quashed and a verdict of acquittal be entered.

5. [9]

   For the following reasons, I would propose that each appeal against conviction be dismissed.

The elements of the offence of aggravated sexual assault

1. [10]

   The elements of the offence under s 61J(1) of the Crimes Act, where the circumstances of aggravation are that the accused was in company of another person (s 61J(2)(c)), are that the accused:

   1. (1)

      had sexual intercourse with the complainant;

   2. (2)

      without the consent of the complainant;

   3. (3)

      knowing the complainant did not consent;

   4. (4)

      in the company of another person or persons.

2. [11]

   For the purposes of Div 10 of Pt 3 of the Crimes Act, which includes s 61J(1)), “sexual intercourse” is defined in s 61H(1) to mean, relevantly for this case, sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any person by any body part of another person (sub-par (a)) or the continuation of sexual intercourse as defined in sub-pars (a), (b) or (c) (sub-par (d)).

3. [12]

   As to the second element of the offence under s 61J(1), s 61HA(2) provides that a person consents to sexual intercourse if the person freely and voluntarily agrees to sexual intercourse. (This provision applies in relation to sexual assault offences under, relevantly, s 61J: s 61HA(1)). Section 61HA(7) provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to sexual intercourse.

4. [13]

   As to the third element of the offence under s 61J(1), s 61HA(3) provides that an accused who has sexual intercourse with a complainant, has knowledge that the complainant does not consent if the accused:

5. [14]

   In determining whether the accused has knowledge that a complainant does not consent to sexual intercourse, the tribunal of fact (in this case, the jury) must have regard to all the circumstances, including any steps taken by the accused to ascertain whether the complainant consented: s 61HA(3)(d).

6. [15]

   The third of the different ways in which the inculpatory state of mind of an accused person can be proven under s 61HA(3)(c) imposes an objective test, “in the sense that (ignoring the onus of proof) the grounds which might lead to a belief of consent must be objectively reasonable”: Lazarus v R [2016] NSWCCA 52 at [156] (Fullteron J, Hoeben CJ at CL agreeing). The question is whether the accused himself might have believed in all the circumstances in which he found himself that the complainant was consenting to sexual intercourse and whether there might have been reasonable grounds for that belief: Lazarus v R at [156].

7. [16]

   As to the fourth element of the offence under s 61J(1) where the circumstances of aggravation are that the accused was “in company”, that expression in s 61J(2)(c) involves the following components: FP v R [2012] NSWCCA 182 at [126] (R A Hulme J, McClellan CJ at CL and Schmidt J agreeing):

   1. (1)

      that the alleged co-offender (in this case, Mr Hussain for count 1) had sexual intercourse with the complainant without her consent, knowing that she was not consenting;

   2. (2)

      that the other person (in this case, Mr Khamis) shared a common purpose that this would occur; and

   3. (3)

      that the other person (Mr Khamis) was physically present when it occurred, such presence being sufficiently proximate if:

The proceedings and evidence at trial

1. [17]

   At the trial there was no issue as to sexual intercourse within the definition in s 61H(1)(a); the consent of the complainant was in issue; the knowledge of both Mr Hussain and Mr Khamis of the absence of consent was in issue; and whether Mr Khamis shared a common purpose that Mr Hussain have sexual intercourse with the complainant without her consent, knowing that she was not consenting was also in issue.

2. [18]

   No complaint is made on appeal by Mr Khamis or Mr Hussain with respect to his Honour’s summing-up or the directions given to the jury.

3. [19]

   In this regard, Mr Hussain’s written submissions accepted that the trial judge’s directions concerning the elements of the offences to be proved by the prosecution in respect of counts 1 and 4 were correctly stated and defined by the trial judge; that the summing-up contained the usual warnings given to a jury when considering a case that depends substantially upon the testimony of one witness, namely, a Murray direction (R v Murray (1987) 11 NSWLR 12); that the trial judge gave a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290); and that the summing-up also contained the usual directions concerning the character evidence of Mr Hussain and the usual warnings concerning corroboration by complainant evidence. There was also a Black direction concerning count 4 (Black v The Queen (1993) 179 CLR 44; [1993] HCA 71).

4. [20]

   A detailed and comprehensive review of the evidence and the course of the trial is provided in the judgment of Button J. These reasons assume a familiarity with that review. Nonetheless, an understanding of the arguments on appeal is assisted by a brief outline of the Crown’s case at trial with respect to the four counts.

5. [21]

   At the time of the alleged conduct in February 2013, the complainant had just turned 17 years of age. She lived with her parents in south-west Sydney. The appellants were both 19 years old. The complainant first met Mr Khamis, and his cousin, Mr Hussain, at a shopping centre at Liverpool on 31 January 2013. Following the exchange of FaceBook messages and some mobile phone calls between Mr Khamis and the complainant, they met by arrangement at Casula Mall on 11 February 2013 at about 9:15pm. Mr Hussain was also present. After driving around in a car for a while, they went to a motel and the complainant was left alone with Mr Khamis while Mr Hussain left to get a phone charger. During the time Mr Hussain was away (about 45 minutes), Mr Khamis had consensual sexual intercourse with the complainant.

6. [22]

   After Mr Hussain returned, all three lay on the bed. The complainant was in the middle between Mr Khamis and Mr Hussain. All three watched a video on Mr Khamis’ phone. The Crown alleged that Mr Hussain began touching and rubbing the complainant’s leg. She turned away from him. She gave evidence that Mr Hussain had masturbated and ejaculated over her leg. The complainant also gave evidence that Mr Hussain’s interest in her continued:

7. [23]

   The Crown case, as put to the jury in closing address, was that from that point, when the complainant said, “Can you please tell your cousin to stop”, there was sufficient knowledge for both Mr Khamis and Mr Hussain that the complainant was not consenting. The Crown case was that Mr Khamis had by then knowledge of Mr Hussain’s actions and endorsed them by laughing.

8. [24]

   From that point in time, according to the Crown case, Mr Khamis and Mr Hussain were in agreement that Mr Hussain would have sexual intercourse with the complainant who was not then consenting to their knowledge. Mr Hussain proceeded to have sexual intercourse with the complainant and the Crown alleged that Mr Khamis participated in the joint criminal enterprise by, amongst other things, advising Mr Hussain not to wear a condom and saying to the complainant, “Don’t worry [name of complainant] you’ll like it”. The Crown submitted to the jury that Mr Khamis emboldened Mr Hussain and intimidated the complainant. The penile-vaginal intercourse between Mr Hussain and the complainant, in company with Mr Khamis, was the subject of count 1 for which Mr Khamis and Mr Hussain were both found guilty.

9. [25]

   The Crown had alleged that Mr Hussain had sexual intercourse with the complainant on two closely related occasions. The second occasion was the subject of count 2. But the complainant gave evidence of only one occasion. The Crown also alleged that Mr Khamis subsequently engaged in penile-vaginal intercourse before penile-anal intercourse and these were the subject of counts 3 and 4. The complainant did not refer in her evidence to the penile-vaginal intercourse, only the penile-anal intercourse. As indicated, the trial judge entered a verdict by direction of not guilty on counts 2 and 3, and the jury returned a verdict of not guilty on count 4 with respect to both appellants.

Unreasonable verdict - relevant principles

1. [26]

   The principles relevant to a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well-established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, French CJ, Gummow and Kiefel JJ said at [11]-[14]:

2. [27]

   However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63, cited in SKA v The Queen at [13] (which is extracted at [26] above). If, after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice. See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [26], [55]-[56].

3. [28]

   This point was reiterated in W v R [2014] NSWCCA 110 by Bathurst CJ who observed at [151], that it is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or as in that case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. In a passage with which Gleeson CJ and Heydon J agreed, Hayne J made the following remarks:

4. [29]

   Accepting as stated in SKA v The Queen, the Court must make its own independent assessment as to the sufficiency and quality of the evidence, which includes weighing the competing evidence, the relevant question is whether the jury must, as distinct from might, have entertained a doubt about each appellant’s guilt.

Submissions on appeal

1. [30]

   The submissions of Mr Khamis and Mr Hussain on appeal and the response of the Crown are summarised in the judgment of Button J. Again, these reasons assume a familiarity with that outline of the competing submissions. For present purposes, it is sufficient to identify the core argument advanced by each of Mr Khamis and Mr Hussain.

2. [31]

   Mr Khamis’ written submissions are directed to the argument that the jury ought to have had a reasonable doubt as to whether the complainant was in fact consenting to sexual intercourse with Mr Hussain, which, according to the submission, was a misjudgment that the complainant made and later regretted. In support of that argument, Mr Khamis made a number of submissions attacking the credibility of the complainant’s evidence.

3. [32]

   Mr Khamis also submitted that despite the trial judge’s direction to the jury in accordance with Markuleski (to consider the accuracy or reliability of evidence relating to each count separately), the jury’s verdicts were inconsistent. According to the submission, the case in relation to count 4 was an “either or” case; either the complainant was distressed (as she said she was) and clearly communicated that distress to Mr Khamis in relation to the conduct the subject of count 4 (as she said she did) or she did not. The submission continued that the not guilty verdicts on count 4 could not be reconciled with the guilty verdicts on count 1.

4. [33]

   Mr Hussain’s written submissions contended that the trial was not factually complex and the prosecution case ultimately depended upon whether, on the fundamental issue of consent, the jury considered the complainant a reliable and truthful witness. Mr Hussain made similar submissions to Mr Khamis attacking the credibility of the complainant’s evidence.

5. [34]

   In addition, Mr Hussain pointed to a number of factors which, according to the submission, were capable of forming in the mind of Mr Hussain a reasonable and honest belief that the complainant was agreeable to sexual relations with him.

6. [35]

   Mr Hussain further submitted that the not guilty verdicts on count 4 must have affected the credibility of the complainant generally on the issue whether she was agreeable to a sexual encounter involving both men, and accordingly, it was unreasonable for the jury not to have entertained a reasonable doubt about the guilt of Mr Hussain on count 1.

Decision

1. [36]

   Having reviewed all of the evidence, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of each appellant’s guilt in respect of the aggravated sexual assault offence the subject of count 1.

Did the Crown establish beyond reasonable doubt that the complainant did not consent to sexual intercourse?

1. [37]

   The fundamental question is whether the complainant could be believed on the issue of consent. The complainant gave evidence at trial that she asked Mr Khamis to tell Mr Hussain to stop his sexual behaviour towards her when Mr Hussain was rubbing the area around her vagina. Against this, counsel for Mr Khamis submitted that on one reading of the complainant’s evidence, the sexual intercourse with Mr Hussain had commenced before there was any indication on the complainant’s part (to Mr Khamis) that she was objecting to sexual intercourse with Mr Hussain.

2. [38]

   A review of the whole of the complainant’s evidence, both in-chief and in cross-examination, makes plain, as the trial judge stated in his summing-up, that the complainant gave evidence of asking Mr Khamis to intervene on three occasions.

3. [39]

   The first occasion was when Mr Hussain was rubbing the area around the complainant’s vagina and she had pulled Mr Khamis’ hand down towards her vagina to show him what Mr Hussain was doing. Mr Hussain accepted in his evidence that this occurred, while Mr Khamis denied that this occurred. The complainant’s evidence was that Mr Khamis lifted the blanket and looked and laughed and then put the blanket back down and did not say anything and that at that point she said to Mr Khamis, calling his name, “Can you please tell your cousin to stop”.

4. [40]

   In cross-examination the complainant gave evidence that as Mr Khamis had a closer relationship to Mr Hussain, she thought that maybe Mr Hussain would listen to Mr Khamis if Mr Khamis told him to stop; and that when Mr Khamis had laughed after he lifted the blanket and looked down and said nothing, her belief was that Mr Khamis did not care what happened to her at all.

5. [41]

   The second occasion was after Mr Hussain had tried to put on a condom and he then lay on top of the complainant and inserted his penis into her vagina. The complainant’s evidence was that at this point she was pinching Mr Khamis and punching him in the arm, and she said to Mr Khamis, calling his name, “Get your cousin off me. I don’t want this”, and that Mr Khamis laughed and hopped out of the bed and said to her, ”Don’t worry, [XXX, referring to the complainant by her first name] you will like it” and walked away over to his phone before he later returned to the bed.

6. [42]

   The third occasion was after the complainant had unsuccessfully attempted to push Mr Hussain off her body during sexual intercourse, by pushing the middle of his chest with her hands. The complainant’s evidence was that she called out to Mr Khamis to come over to the bed and lay back down and when he did the complainant said to Mr Khamis, “Please, can you get your cousin off me”, but Mr Khamis did not respond to her request. The complainant’s evidence continued that it was after Mr Khamis had not responded to her request that she pushed directly in the middle of Mr Hussain’s chest and told him to get off her and that she was going to have a shower. At that point Mr Hussain got off the complainant.

7. [43]

   Thus there was an important difference in the complainant’s evidence concerning the language she used when she first protested to Mr Khamis to tell Mr Hussain to “stop”, and the latter occasions when Mr Hussain had commenced sexual intercourse and the complainant protested to Mr Khamis to tell Mr Hussain to “get … off me”.

8. [44]

   The complainant’s account that she protested directly to Mr Khamis to tell Mr Hussain to stop when he was rubbing the area of her vagina, was supported by the evidence given by her friend (who it is convenient to refer to as Ms Johnson so as not to identify her). Ms Johnson gave evidence that the complainant told her during a telephone call the following morning that Mr Hussain had started “fingering” her and when Ms Johnson asked what she did in response, the complainant answered, “I was pinching [Mr Khamis’] leg and whispering to him, telling him, “Can you please tell your cousin to stop”. Whether the complainant spoke in a whisper or loud enough for Mr Khamis and Mr Hussain to hear is not determinative of the issue of consent, although it is relevant to the issue of knowledge of absence of consent (which is addressed below).

9. [45]

   The jury was faced with a contest between the complainant’s evidence of her protest to Mr Khamis when Mr Hussain was rubbing the area of her vagina, but no protest directly to Mr Hussain either then or when he was attempting to put a condom on his erect penis, and the competing evidence of Mr Khamis that the room was silent, except for the unwrapping of the condom by Mr Hussain, and Mr Hussain’s evidence that he did not hear the complainant speak to Mr Khamis.

10. [46]

    It can be accepted that there were aspects of the complainant’s evidence that should have caused the jury to approach the complainant’s credibility with a degree of caution on the issue of consent. The following matters were raised by the appellants directed to the sufficiency and quality of the complainant’s evidence.

11. [47]

    First, there was an inconsistency between the complainant’s evidence-in-chief that Mr Hussain penetrated her vagina with his fingers when he was rubbing the area of her vagina and her evidence in cross-examination that she could not recall if Mr Hussain pushed his fingers in or not. In this regard, the history given by the complainant to Dr Isaacs, who examined the complainant the following evening following her attempted suicide, also referred to Mr Hussain putting his finger into the complainant’s female genitals.

12. [48]

    However, that the complainant was uncertain in her evidence as to whether Mr Hussain’s fingers penetrated her when he was rubbing the area of her vagina, could be viewed by the jury as showing her honesty in her recollection at trial. It does not necessarily detract from her evidence that she protested to Mr Khamis when this conduct was occurring and that he ignored her protest.

13. [49]

    Second, there was an inconsistency between the complainant’s evidence-in-chief that she heard the rustling of what she presumed to be a condom and her earlier police statement, which she accepted in cross-examination, that she saw Mr Hussain attempting to put a condom over his erect penis. However, that difference in the complainant’s evidence could have been viewed by the jury as consistent with her fading memory over two years concerning what she saw.

14. [50]

    Third, while the history given by the complainant to Dr Isaacs was seemingly incomplete on the Crown case, that needs to be viewed in context. The history was given by the complainant at 8.45pm on 12 February 2013 approximately 17 hours after the alleged events, and after the complainant had attempted suicide. The summary by Dr Isaacs recorded only some direct quotes from the complainant and the Crown correctly emphasised that the summary obviously lacks detail (referring to the complainant describing a four-hour period over which she was subjected to repeated vaginal and one episode of anal penetration without consent by two men) and is the Doctor’s summary in the Doctor’s words.

15. [51]

    It can be inferred from the divergences between the Crown opening at trial and the absence of evidence given by the complainant leading to the verdicts by direction on counts 2 and 3, that she had made more extensive allegations before the trial than she did in her evidence. However, the lack of evidence to support counts 2 and 3 is equally consistent with a failure of memory as the detail of all the events in the motel room.

16. [52]

    Fourth, that the complainant spoke to a male friend the following morning of having “done something wrong”, having “slept with two guys” and she “felt dirty and just want to die”, and her suicide note referred to “mistakes” of the complainant, as opposed to having been sexually assaulted by one man while the other man ignored her protest, were matters to be weighed by the jury in the context in which those statements were made by the complainant.

17. [53]

    The complainant’s evidence was that she spoke to her male friend after she had consumed three quarters of a bottle of vodka and before she started projectile vomiting. It was open to the jury to infer that this level of alcohol would have affected her ability to fully explain what occurred.

18. [54]

    As to the suicide note, the complainant gave evidence that she had not wanted to fully explain why she intended to suicide. Her note was incomplete as to her motive and it was open to the jury to accept that it should not be taken as reflecting that she was merely concerned with her poor judgement. In addition, the jury had the evidence of Dr Isaacs that the sexual assault was a “plausible and consistent explanation” for the alcohol ingestion and self-harm by the complainant.

19. [55]

    That the complainant regretted her poor judgment in accompanying the two men to the motel and staying in the room with them is not inconsistent with her being sexually assaulted. The jury had the advantage of seeing the complainant give her evidence and was better placed than this Court to assess the credibility of her explanation for her expression of regret the following morning and her attempt at suicide.

20. [56]

    Sixth, that the complainant kissed both Mr Khamis and Mr Hussain goodbye on the cheek when they dropped her off at her home the following morning does not mean that the jury should have regarded her seemingly friendly behaviour at that time, while perhaps surprising, as inconsistent with an earlier sexual assault by Mr Hussain. The unstated premise of the appellants’ argument that the trauma of sexual assault only manifests itself by the victim raising a howl or scream of protest, should be rejected. That would be to ignore, as in this case, the young age of the complainant, her psychological problems, and the invidious position in which she found herself of having agreed to consensual sexual intercourse with one man but not with another, who as the trial judge described in his summing-up to the jury was the “third wheel” in the room.

21. [57]

    Seventh, I do not regard it as necessarily odd that the complainant said nothing whatsoever to Mr Hussain directly, but relied upon him hearing her expression of lack of consent to Mr Khamis. The complainant was a young girl aged 17 years who, after having consensual sexual intercourse with Mr Khamis, came to be in bed with both men watching a video on Mr Khamis’ mobile phone, following Mr Hussain’s return to the motel room. The complainant’s evidence was that she adopted the approach of expressing her lack of consent directly to Mr Khamis, being the person she knew, in the presence of Mr Hussain, in the hope that Mr Khamis would intervene and direct his cousin (who she did not know) to stop his sexual behaviour towards her. That the complainant might have expressed her lack of consent in a more direct way to Mr Hussain is not inconsistent with her not consenting to sexual intercourse with him.

22. [58]

    Eighth, the submission by Mr Khamis that the verdicts on counts 1 and 4 are inconsistent, and the related submission by Mr Hussain that the not guilty verdict on count 4 must have affected the credibility of the complainant generally, in particular on the issue of consent on count 1, should be rejected. In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ said at [34] that:

23. [59]

    In this regard, as mentioned, no complaint is made by Mr Khamis or Mr Hussain in relation to the adequacy of the trial judge’s direction to the jury to consider the accuracy or reliability of evidence relating to each count separately: R v Markuleski.

24. [60]

    In PA v R [2015] NSWCCA 18 at [71], Hamill J summarised how a contention of inconsistent verdicts should be dealt with:

25. [61]

    The acquittal of Mr Khamis on count 4 can be explained by the jury not being satisfied of Mr Khamis’ knowledge of the complainant’s lack of consent. The alleged offending the subject of counts 1 and 4 can be differentiated, given the earlier act of consensual sexual intercourse between the complainant and Mr Khamis, the conduct of the complainant in allowing Mr Khamis into the shower with her after the alleged sexual assault by Mr Hussain the subject of count 1, and the absence of any words of protest by the complainant in her evidence before the jury in relation to the occasion of penile-anal intercourse with Mr Khamis the subject of count 4.

26. [62]

    The acquittal of Mr Hussain on count 4 can be explained by the jury not being satisfied of his role as being “in company”, as well as not being satisfied of Mr Khamis’ knowledge of the complainant’s lack of consent. For count 4, Mr Hussain gave evidence that he was asleep and did not remember what happened after his conduct the subject of count 1. Mr Khamis had given evidence confirming that Mr Hussain was asleep and was facing the wall.

27. [63]

    Ninth, that the complainant and Mr Khamis had earlier had consensual intercourse at the motel while Mr Hussain was away did not indicate a willingness by the complainant to engage in consensual sexual intercourse with both Mr Khamis and Mr Hussain, or when both of them were present.

28. [64]

    Weighing all the evidence in particular, the absence of protest by the complainant directly to Mr Hussain when he was rubbing the area of her vagina and then attempting to put a condom on his erect penis in the context of the complainant’s evidence that she had protested directly to Mr Khamis who she saw as more likely to persuade Mr Hussain to stop his sexual behaviour towards her, but Mr Khamis had laughed and then encouraged Mr Hussain not to use a condom, I do not experience a reasonable doubt about whether the complainant was consenting.

29. [65]

    In my view, it was open to the jury to be satisfied that although the complainant did not say anything to Mr Hussain when she heard and saw him with the condom, the absence of protest by her at that point was not consent by her to sexual intercourse with Mr Hussain, given that immediately before this, she had requested Mr Khamis to tell Mr Hussain to stop rubbing the area of her vagina, he had laughed, he had ignored her request to come to her assistance and he had encouraged Mr Hussain not to use a condom.

Whether the Crown established beyond reasonable doubt that Mr Hussain knew that the complainant was not consenting?

1. [66]

   The focus of the argument on appeal on the issue of knowledge of the absence of consent was directed to whether Mr Hussain had no reasonable grounds for believing that the complainant was consenting to sexual intercourse. As indicated, for that purpose, the jury (as the tribunal of fact), was required to have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether the complainant consents to the sexual intercourse: Crimes Act, s 61HA(3)(d).

2. [67]

   There was no suggestion in the evidence that Mr Hussain took any direct steps to ascertain whether the complainant consented to the sexual intercourse. That the complainant and Mr Khamis had earlier had sexual intercourse while Mr Hussain was away from the motel could not be taken as an indication of a willingness by the complainant to also engage in sexual intercourse with Mr Hussain, let alone when Mr Khamis was present.

3. [68]

   Mr Hussain’s evidence was that he had rubbed the complainant’s upper right thigh for three to five minutes “to see if she was willing or not”, that the complainant did not say anything and he proceeded to rub “her private parts” from the outside” and then the area of her vagina for about four to five minutes because “I wanted to find out whether she wanted to sleep with me or not”, by which Mr Hussain said in his evidence he meant if she wanted to have sex with him. Mr Hussain’s evidence was that the complainant didn’t say anything when he attempted to put on the condom, and he thought the complainant was consenting.

4. [69]

   Mr Hussain accepted in cross-examination that he did not know whether the complainant wanted to have sex or not by being at the motel room. As to whether he took from the fact that the complainant was in bed without her jeans on meant that she wanted to have sex with him, Mr Hussain answered equivocally “I don’t know; maybe yes maybe no”. Mr Hussain accepted that there was no intimate touching by the complainant, that she did not say anything to him and she did not kiss him.

5. [70]

   As to the significance of the condom, Mr Hussain was encouraged not to use a condom not by anything the complainant said or did, but by Mr Khamis who, according to the complainant’s evidence, told Mr Hussain not to use a condom, that she was on the pill and not to worry that it would be fine. In this regard, Mr Khamis accepted in cross-examination that he might have told Mr Hussain not to use a condom.

6. [71]

   As to whether Mr Hussain heard the complainant ask Mr Khamis to stop rubbing the area of her vagina and later to get off her, Mr Hussain accepted in cross-examination that if the complainant had said something to Mr Khamis he would have been able to hear, although Mr Hussain added that he did not hear the complainant say anything to Mr Khamis. Although Mr Hussain’s evidence was that his command of the English language was limited in February 2013, there was no suggestion in the evidence that he did not understand at that time the words “stop” or “get off me”. The jury had the advantage of seeing him give his evidence two years later (when he said his command of the English language had improved), and assessing his denial that he did not hear the complainant speaking to Mr Khamis.

7. [72]

   Counsel for Mr Khamis emphasised in submissions that the complainant’s evidence that she told Mr Khamis in a voice loud enough for him and Mr Hussain to hear to tell Mr Hussain to stop (when he was rubbing the area of her vagina), was inconsistent with what the complainant told her friend (Ms Johnson) the next morning that she had “whispered” this to Mr Khamis. According to the submission, it was reasonably possible that Mr Khamis did not hear the complainant, if she did in fact say anything. Mr Khamis’ evidence was that the complainant did not speak to him at all, other than when Mr Hussain had got off the complainant and she said that she was going to have a shower.

8. [73]

   The complainant’s evidence was that she did not remember saying to Ms Johnson the following morning that she was whispering things to Mr Khamis. When pressed, the complainant explained that when she got home she started drinking a bottle of vodka and she could not really remember anything that happened when she got home, but insisted that when she was in the motel room she was speaking loudly. Given her alcohol ingestion and attempt at suicide, the complainant’s lack of recollection of what she said to Ms Johnson the following morning is hardly surprising and it was open to the jury to accept this evidence.

9. [74]

   The complainant’s evidence-in-chief was that she was punching Mr Khamis in the arm and pinching him and spoke loud enough for Mr Hussain to hear what she was saying to Mr Khamis. She adhered to that evidence in cross-examination after the proposition had been put to her that she had told Ms Johnson the following morning of “whispering” to Mr Khamis. The complainant’s evidence was that she spoke “out loud for all three of us to hear clearly”. Her evidence was that she said to Mr Khamis “Tell your cousin to stop” out loud, and that occurred “a fair few times as well”. She explained that she tried the option of asking Mr Khamis first to see what he would do. The complainant rejected the proposition that she only spoke to Mr Khamis in a whisper and insisted that she was speaking loudly.

10. [75]

    The discrepancy between the complainant’s evidence of speaking loud enough for Mr Khamis and Mr Hussain to hear, and the evidence of Ms Johnson that the complainant referred to “whispering” to Mr Khamis, should have caused the jury to approach the complainant’s evidence with a degree of caution.

11. [76]

    Nonetheless, the jury had the benefit of seeing the complainant, Mr Khamis, Mr Hussain and Ms Johnson give their evidence. The evidence of Mr Khamis that there was silence in the motel room except for the sound of something being unwrapped, possibly being a chocolate, was hardly compelling evidence as to the circumstances of what was occurring in the room given that Mr Hussain accepted that the complainant had taken Mr Khamis’ hand down towards her vagina when Mr Hussain was rubbing the area of her vagina. I do not consider that the jury must have entertained a doubt that Mr Khamis did not hear the complainant ask him to tell Mr Hussain to stop when she was punching him in the arm and pinching him, or that Mr Hussain did not hear what the complainant said to Mr Khamis given his immediate proximity to her at the time.

12. [77]

    As to the complainant’s evidence that she pushed Mr Hussain twice in the chest to get him off her, it was submitted by Mr Khamis that, if the jury was satisfied that the complainant pushed Mr Hussain twice, there must have been a reasonable possibility that Mr Hussain did not feel the complainant’s first push since he was in the process of having sexual intercourse. Alternatively, Mr Khamis submitted that Mr Hussain did not recognise the first push as a rejection in the context of at least four to five minutes of foreplay, and his knowledge that the complainant saw him remove his clothing and try to put on a condom. According to the submission, these reasonable possibilities were, in turn, made more likely by Mr Hussain’s obvious willingness to stop having sex at the complainant’s request even though he did not reach the point of climax.

13. [78]

    These submissions direct attention to the evidence given by the complainant and Mr Hussain. The complainant’s evidence was that she put her hands in the middle of Mr Hussain’s chest trying to push him off her, but the more that she did so the more he put his body pressure on her and weighed himself down on to her. The complainant’s evidence continued that she called out to Mr Khamis to come over to the bed and lay back down. (Mr Khamis had left the bed after Mr Hussain had commenced sexual intercourse with the complainant; he accepted in cross-examination that the bed was shaking and that he knew exactly what was happening. He said that he “didn’t want to be involved so I was on my phone”). The complainant’s evidence was that when Mr Khamis returned to the bed, she said to him, “Please, can you get your cousin off me”, but Mr Khamis did not respond to her request. It was at that point, according to the complainant’s evidence, that she pushed directly in the middle of Mr Hussain’s chest and told him to get off her and that she was going to have a shower, and Mr Hussain then got off the complainant.

14. [79]

    Mr Hussain’s evidence was that there was only one occasion when the complainant put her hands on his chest to push him off. He denied that the complainant pushed him in the chest on two occasions and told him to get off. Again the jury had the advantage of observing the evidence given by the complainant and Mr Hussain concerning whether there was more than one push by the complainant on Mr Hussain’s chest to get off her.

15. [80]

    Given the whole of the evidence, I do not experience a reasonable doubt about whether Mr Hussain had “no reasonable grounds for believing that the [complainant] consents to the sexual intercourse”: s 61HA(3)(c) of the Crimes Act. Whatever Mr Hussain’s subjective belief, in my view, it was open to the jury to be satisfied beyond reasonable doubt that he did not have reasonable grounds in all the circumstances for believing that the complainant was consenting to sexual intercourse with him.

Whether the Crown established beyond reasonable doubt that Mr Khamis knew that Mr Hussain had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and Mr Khamis shared a common purpose that this would occur and was physically present and participated in the offence?

1. [81]

   Although Mr Khamis and Mr Hussain did not direct submissions specifically to this element of the offence, I will deal with it for completeness.

2. [82]

   Reference has been made to the complainant’s evidence that after Mr Khamis had lifted the blanket and looked at what Mr Hussain was doing (rubbing the area of her vagina), Mr Khamis laughed, put the blanket back down, did not say anything and ignored the complainant’s request to tell Mr Hussain to stop.

3. [83]

   Reference has been made to the complainant’s evidence of the encouragement given by Mr Khamis to Mr Hussain not to use a condom; he said to Mr Hussain that “it was alright” and “it was better without it” and that Mr Khamis said to the complainant “you’ll like it” when he left the bed. It was open to the jury to accept that these statements by Mr Khamis both emboldened Mr Hussain and intimidated the complainant.

4. [84]

   Reference has also been made to Mr Khamis’ evidence in cross-examination that the bed was shaking, that he knew exactly what was happening, and that he “didn’t want to be involved so I was on my phone”. In addition, there was the complainant’s evidence that when Mr Khamis returned to the bed, he ignored her requests to tell Mr Hussain to get off her.

5. [85]

   Given the whole of the evidence, I do not experience a reasonable doubt about whether Mr Khamis was in company with Mr Hussain. In my view, it was open to the jury to be satisfied beyond reasonable doubt that Mr Khamis shared the common purpose with Mr Hussain that Mr Hussain have sexual intercourse with the complainant without her consent, knowing that she was not consenting, and that he was physically present in the motel room and encouraged Mr Hussain and intimidated the complainant.

Conclusion and Orders

1. [86]

   In my view, the appeal against conviction by each of Mr Khamis and Mr Hussain must fail. I propose the following orders:

   1. (1)

      Extend the time for Rafal Raad Khamis to appeal against his conviction.

   2. (2)

      Leave to appeal against conviction is granted to Rafal Raad Khamis.

   3. (3)

      The appeal against conviction of Rafal Raad Khamis is dismissed.

   4. (4)

      Leave to appeal against conviction is granted to Ather Hussain.

   5. (5)

      The appeal against conviction of Ather Hussain is dismissed.

2. [87]

   FULLERTON J: I agree with Gleeson JA and the orders his Honour proposes. After considering the transcript of the evidence at trial, in particular the complainant’s evidence, including her cross-examination, and after taking into account the carefully structured directions of the trial judge (as to which there was no challenge on the appeal), I am satisfied it was open to the jury to return verdicts of guilty of both Mr Khamis and Mr Hussain on Count 1 of the indictment.

3. [88]

   BUTTON J:

Introduction

1. [89]

   Rafal Raad Khamis and Ather Hussain (the appellants) were arraigned before Acting Judge Graham and a jury panel in the District Court sitting at Parramatta on 13 April 2015. The indictment contained four counts. All of them averred that, between 10 February and 13 February 2013, both of the appellants had sexual intercourse with the complainant, without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that the two of them were in the company of each other.

2. [90]

   Each of the appellants pleaded not guilty to all counts, and the trial commenced immediately.

3. [91]

   At the end of the Crown case, a verdict by direction of not guilty was entered with regards to both appellants on counts two and three, on the orthodox basis that there was no evidence in the Crown case in support of those counts.

4. [92]

   At the end of the trial, the jury returned a verdict of not guilty with regard to each appellant on the fourth count. However, the jury also returned a verdict of guilty against each appellant on the first count.

5. [93]

   Thereafter, each of the appellants was sentenced to imprisonment by his Honour. Because there is no application for leave to appeal against sentence, and the non-parole periods of the sentences have expired in any event, they do not need to be discussed further.

6. [94]

   An extension of time is required by Mr Khamis in order to prosecute the appeal. Evidence was provided of the logistical and administrative circumstances that have made it difficult for the appeal to be presented timeously. There was also evidence that, if his conviction is confirmed, he will be immediately deported from Australia. Finally, the Crown did not oppose the extension of time.

7. [95]

   In my opinion, the combined effect of all of those factors is that an extension of time should be granted.

Grounds

1. [96]

   Two grounds were relied upon by Mr Khamis:

2. [97]

   1. The appellant appeals his conviction on the ground that his trial miscarried because counts 1 and 2 were not properly particularised.

3. [98]

   2. The appellant seeks leave to appeal his conviction on the ground that his conviction was unreasonable, or could not be supported, having regard to the evidence.

4. [99]

   A single ground was relied upon by Mr Hussain:

5. [100]

   Although the second ground of Mr Khamis and the single ground of Mr Hussain were expressed a little differently, they are identical. For the convenience of the reader, I shall simply refer to that ground as “the second ground”.

6. [101]

   Although both Mr Khamis and Mr Hussain require leave with regard to that shared ground founded on a question of fact, for the convenience of the reader I have referred to them consistently as “the appellants” in this judgment.

Overview of evidence, and relevant procedural aspects of the trial

1. [102]

   The second ground calls for a detailed analysis of all of the evidence in the trial.

2. [103]

   The first ground calls for analysis of relevant parts of the opening to the jury of the trial advocate for the Crown, the evidence in the trial, a question from the jury, the response of the three advocates to that question, the answer that the trial judge gave to that jury question, what the trial judge said to the jury when the two verdicts of not guilty were directed, the response of the three barristers to that, and a small portion of the summing up.

3. [104]

   It is convenient now to summarise all of that material in the order in which it arose in the trial, rather than seeking to separate it out according to the ground to which it is relevant.

Crown opening

1. [105]

   The trial advocate explained to the jury that his case was that on 31 January 2013, the complainant, a young woman then aged almost 17 years, met Mr Khamis and Mr Hussain at a shopping centre in the south-western Sydney suburb of Liverpool. At the time the complainant was with a female friend of hers whom I shall call Ms Johnson, in order to protect the privacy of the complainant. The two young men gave the two young women a lift to a different shopping mall, and the interaction between the four of them came to an end.

2. [106]

   Between 1 February and 6 February 2013, the complainant and Mr Khamis exchanged Facebook messages. They also exchanged mobile phone numbers.

3. [107]

   On 11 February 2013 at about 9:15 PM, Mr Khamis and the complainant met by arrangement at the second shopping mall. Mr Hussain was also present. The three of them drove around for a while, after which Mr Hussain left the vehicle. According to the Crown opening, Mr Khamis tried to kiss the complainant and touch her breasts while Mr Hussain was away from the car.

4. [108]

   Eventually, the three young people decided to go and stay in a motel. Funds were obtained from an ATM for that purpose.

5. [109]

   While at the motel, the complainant rang Ms Johnson on her mobile phone from outside the room.

6. [110]

   Shortly after the arrival of the three of them, Mr Hussain left the room. Consensual sexual intercourse took place between the complainant and Mr Khamis, commencing with digital/vaginal sexual intercourse, and proceeding to penile/vaginal sexual intercourse.

7. [111]

   The trial advocate made it clear in his opening that neither of those alleged acts of consensual sexual intercourse constituted any count on the indictment.

8. [112]

   The opening continued to outline that Mr Hussain returned to the room. The three persons lay on the bed, with the complainant between the two young men.

9. [113]

   The opening asserted that the complainant would give evidence that Mr Hussain placed his hand on her leg. As a result, the complainant drew to the attention of Mr Khamis what Mr Hussain was doing. It was further opened that each of the appellants pulled the covers over the three of them, and that Mr Hussain moved his hand towards the vagina of the complainant. After that, he placed his hand underneath her underpants and engaged in digital/vaginal sexual intercourse.

10. [114]

    Again, the trial advocate opened that the complainant punched Mr Khamis lightly in order to inform him that she was not consenting to what was occurring. According to the opening, Mr Khamis looked underneath the covers and saw what was occurring, and reacted to it.

11. [115]

    The opening continued that Mr Hussain stopped the digital penetration of the complainant of his own accord. After that, he engaged in conduct that led the complainant to believe that he was masturbating. Some time passed, after which Mr Hussain got out of bed, and the complainant saw that he was trying to put a condom on his penis. There was conversation between Mr Hussain and Mr Khamis, and after that Mr Hussain got back into bed.

12. [116]

    The trial advocate anticipated that the complainant would say that Mr Hussain then commenced having penile/vaginal sexual intercourse with her. The complainant then said to Mr Khamis words to the effect of “Get your cousin off me”. The intercourse continued, and the complainant put her hand on the chest of Mr Hussain in an attempt to push him off. She said nothing directly to Mr Hussain.

13. [117]

    She did say to Mr Khamis, according to the opening, loudly enough for both men to hear her, “Please get your cousin off me?” She also squeezed the hand of Mr Khamis “really hard” to alert him to what was being done by Mr Hussain.

14. [118]

    The trial advocate then opened that the sexual intercourse came to an end, and the complainant simply lay there. After a few minutes had passed, Mr Hussain “got back on top” of the complainant, and penile/vaginal sexual intercourse occurred again.

15. [119]

    The trial advocate then said the following:

16. [120]

    After that, the complainant got up from the bed and had a shower in the motel bathroom. Mr Khamis joined her. She returned to the bed with the encouragement of the two appellants.

17. [121]

    After dawn had broken the next day, Mr Khamis sought to remove the underpants of the complainant. The complainant made it clear through words that she was not consenting. Mr Khamis nevertheless pushed her legs apart and placed his penis in her vagina. The complainant experienced pain. The penile/vaginal sexual intercourse came to an end when Mr Khamis got up from the bed and went to the bathroom.

18. [122]

    The trial advocate said:

19. [123]

    The trial advocate went on to open that Mr Khamis returned from the bathroom into the room of the motel itself. He grabbed the complainant and wrapped his arms around her neck. He then inserted his penis into her anus. Again, she made it clear though her words that she did not consent to that penile/anal sexual intercourse.

20. [124]

    The stay in the motel room concluded with a motel worker asking when the three guests would leave. They did leave, after which the complainant spoke to Ms Johnson and others.

21. [125]

    Some time later, on 22 February 2013, the complainant ran into Mr Khamis, and they had a conversation about what had occurred at the motel.

22. [126]

    After that, the jury was provided with copies of the indictment. The trial advocate said:

23. [127]

    The trial advocate then went on to discuss various legal matters with the jury. They do not require elaboration for the purposes of either ground of appeal, except to say that he made it clear that the Crown proposed to prove knowledge of lack of consent on the part of the appellants either by way of actual knowledge; or by way of recklessness; or by way of the appellants having no reasonable grounds for a belief that the complainant was consenting, pursuant to s 61HA of the Crimes Act 1900 (NSW).

24. [128]

    Finally, with regard to each count, and the assertion that each of the appellants was in the company of the other, the trial advocate explained that the Crown case was based upon there having been a joint criminal enterprise between the two of them, even though underpinning each count was the allegation that only one of them had had sexual intercourse with the complainant on each occasion.

25. [129]

    The complainant was the first witness called in the Crown case.

26. [130]

    She spoke of meeting the two appellants on 31 January 2013 at a shopping centre, whilst in the company of her friend Ms Johnson. On that occasion, Mr Khamis gave the complainant and Ms Johnson a lift closer to their homes.

27. [131]

    After that, she and Mr Khamis had online contact through Facebook over a period of several days. The details of those messages were explored, and it was clear that Mr Khamis had a romantic or sexual interest in the complainant. Later, a printout of the messages was tendered and became exhibit A in the Crown case.

28. [132]

    The complainant spoke of arranging with Mr Khamis to meet again on 11 February 2013. She walked down to a local shopping centre. Mr Khamis arrived in his vehicle with Mr Hussain. The complainant asked why Mr Hussain was there, and Mr Khamis said to the complainant that she had spoken in the messages of the presence of Ms Johnson. The complainant denied that she had done so.

29. [133]

    The three of them drove around the suburbs of Sydney. Eventually, a decision was made to book a motel room. The complainant gave evidence:

30. [134]

    Whilst the two young men were in the reception area of the motel, the complainant waited outside and telephoned Ms Johnson.

31. [135]

    The first room provided was found to be unsatisfactory, so the three of them obtained a different room. Again, the complainant was outside telephoning Ms Johnson.

32. [136]

    The complainant entered the room to see the two young men lying on the bed. The television was on. Whilst the complainant was watching television, the two young men spoke in Arabic, a language that she did not understand. Mr Hussain said that he needed to obtain a charger for his mobile phone, and left. In the absence of Mr Hussain, consensual penile/vaginal sexual intercourse occurred between the complainant and Mr Khamis. That was preceded by the two of them kissing and touching each other, and the complainant removing her own jeans.

33. [137]

    At one stage, Mr Khamis had penile/vaginal sexual intercourse with the complainant from behind. She said:

34. [138]

    The sexual intercourse was interrupted by the sound of the vehicle of Mr Khamis from outside the motel room, indicating the return of Mr Hussain. Mr Hussain knocked on the door, and it was the complainant who told Mr Khamis to let him into the motel room. At that stage she was wearing her long singlet, her bra, and her underpants.

35. [139]

    After that, the three of them were lying on the bed, with the complainant in the middle of the two young men. She felt the hand of Mr Hussain rubbing the top of her left thigh. That occurred for about five minutes. Later, she felt the bed “shaking a little bit”, and formed the opinion that Mr Hussain was masturbating. A few minutes after that she felt “a wet but warm sticky substance” on her leg, and inferred that Mr Hussain had ejaculated.

36. [140]

    Mr Hussain got out of bed. When he returned she “could hear rustling of a packet and he was opening up a condom” [TT 98.30].

37. [141]

    The complainant gave evidence that, at the time Mr Hussain was touching her leg, she had no conversation with Mr Hussain. She could not recall whether she had conversation with Mr Khamis at that stage about not wanting that to happen, or whether it was after she presumed that Mr Hussain had ejaculated that she had such a conversation with Mr Khamis.

38. [142]

    When the trial advocate asked about Mr Hussain having touched her “private area”, the complainant said:

39. [143]

    She then spoke of Mr Hussain “fingering me”, and expressed the thought that that was after he had ejaculated.

40. [144]

    She spoke of having grabbed the hand of Mr Khamis, and pulling it down towards her vagina, in an effort to have Mr Khamis stop what Mr Hussain was doing. She said that Mr Khamis:

41. [145]

    She said that she was also punching Mr Khamis on the arm and pinching him, and telling him “can you please tell your cousin to stop” [TT 99.22]. She gave evidence that that was said loudly enough for Mr Hussain to hear what she had said to Mr Khamis, “definitely loud enough”.

42. [146]

    She gave evidence that she presumed that the rustling sound she heard was a condom, but she did not see it. She did see Mr Hussain with his head “down towards his penis area”, and presumed that he was manipulating a condom [TT 99.40 and following].

43. [147]

    The complainant gave evidence that, after that, Mr Khamis asked Mr Hussain whether he was putting on a condom, and Mr Hussain replied in the affirmative. The complainant gave evidence that Mr Khamis replied “Don’t wear one it feels better with it off or without one” [TT 100.7].

44. [148]

    Thereafter, the complainant gave evidence that Mr Hussain lay on top of her and inserted his penis into her vagina. At the time she was pinching and punching Mr Khamis, and asking him to get his cousin, Mr Hussain, off her. Her evidence was that Mr Khamis laughed and simply told her not to worry, and that she would like the experience [TT 100.17 and following].

45. [149]

    Whilst Mr Hussain was having sexual intercourse with her, she was seeking to push him off by placing her hands to his chest. The more she did that, the more he weighed himself down onto her. She then called out to Mr Khamis, and asked him to return to the bed and lie down again. He did so, and she asked him again to remove his cousin. According to the complainant, Mr Khamis “didn’t care”.

46. [150]

    Eventually, she pushed directly into the chest of Mr Hussain and said “Get off me, I’m going to go have a shower” [TT 100.38]. Mr Hussain complied with her request. The complainant got up from the bed, and entered the shower recess. Mr Khamis joined her and asked her what was wrong. She replied “You know what’s wrong with me”, and said “I told [sic] I didn’t want your cousin touching me”. Mr Khamis apologised [TT 101.4].

47. [151]

    The complainant left the shower and, in the absence of towels, dried herself on a blanket. She sat in a walk-in cupboard in the room until she became dry. She dressed herself again in her singlet, underpants and bra. She went to the window and saw that dawn had broken, and people were up and about.

48. [152]

    She began to feel nauseous and tired, and lay down on the bed again intending to sleep. Mr Khamis said “I’ll give you five minutes to sleep but then the party starts again, you know” [TT 101.22]. Nothing further occurred between the complainant and Mr Hussain, but Mr Khamis had penile/anal intercourse with her from behind whilst restraining her neck with his arm, thereby restricting her breathing. The anal intercourse was very painful to the complainant. (I interpolate that I well appreciate that the above evidence of the complainant resulted in a verdict of acquittal with regard to both appellants on count four.)

49. [153]

    The trial advocate proceeded to show the complainant a number of photographs of the motel room in question; they were tendered without objection, and became exhibit B.

50. [154]

    After the anal intercourse came to an end, the complainant was in pain, and told Mr Khamis that. She adopted the foetal position, and tried to sleep. After that, one of the motel employees came to the room and explained that, unless it was vacated, another night would have to be paid for.

51. [155]

    The three young people left in the vehicle of Mr Khamis. According to the complainant, Mr Khamis repeatedly played a song on his car sound system that featured the lyrics “I’m going to get you wet, I’m going to make you sweat. This will be a night you won’t forget” [TT 110.7].

52. [156]

    After a drive of less than 10 minutes, the complainant arrived at her family home. No one else was home. She became extremely upset. She sat for an hour in the shower recess crying. Eventually, she decided to kill herself, and wrote a suicide note. She drank a bottle of vodka, and slashed her wrists. She had a recollection of waking up in a hospital in a hysterical state and vomiting.

53. [157]

    The suicide note was tendered and became exhibit C. Its contents verbatim are as follows:

54. [158]

    It was whilst she was at the hospital that the complainant made an allegation of sexual assault to a nurse. Thereafter, the police became involved.

55. [159]

    The complainant gave evidence that, some days later on 22 February 2013, she ran into Mr Khamis on the street in Liverpool. She had a conversation with him, the contents of which were admitted against Mr Khamis only.

56. [160]

    In a nutshell, Mr Khamis told her that Ms Johnson had spoken to him, and spoken of the complainant having been hospitalised and having made an allegation of sexual assault. The complainant, having been told by the investigating detectives to deny that she had spoken to them, did so. Mr Khamis asserted that he did not rape the complainant. There was further conversation about family matters.

57. [161]

    When someone drove past and sounded his horn and yelled out, the complainant asked Mr Khamis whether that person was Mr Hussain. He assured her that it was not, but also said “You really don’t like my cousin, do you?” She agreed that she did not, and when asked why by Mr Khamis she said:

58. [162]

    According to the complainant, Mr Khamis complimented her on her appearance and then left.

59. [163]

    Later in her evidence, she recalled that he had said “…I told you to tell him to fuck off”, and that it was her responsibility to have said something directly to Mr Hussain [TT 116.30].

Cross-examination of the complainant by counsel for Mr Hussain

1. [164]

   In cross-examination, the complainant accepted that it was a short walk from the motel to the home at which she lived with her family.

2. [165]

   She agreed that she made the arrangement to meet up on the evening in question because she wished to catch up with Mr Khamis. She also agreed that Mr Khamis was a little late arriving, and it was she who had telephoned him to see where he was.

3. [166]

   Due to his lateness, it would have been somewhere about 9:30 PM and 9:40 PM when the meeting occurred.

4. [167]

   The complainant agreed that the expectation of her parents was that she would be at home at least before midnight.

5. [168]

   She was taken to the details of the driving around undertaken by the three of them.

6. [169]

   As for the idea of going to the motel, in cross-examination she said:

7. [170]

   She agreed that at that stage Mr Hussain “misconstrued” her position as being that she wished to stay out all night, though whether she meant by that word he had done so accidentally or on purpose is not clear [TT 131.35].

8. [171]

   She agreed that she had made a statement about the events of 11 February 2013 on 30 July 2013.

9. [172]

   She agreed that, before the three of them booked into the motel, she was “waiting around” for Mr Khamis to withdraw money from an ATM [TT 133.15].

10. [173]

    She agreed generally that the motel in question was not salubrious.

11. [174]

    She agreed that, even at the time of moving to the second room, that was well past the time when her parents expected to be home, and yet she did not seek a lift home from Mr Khamis. She also agreed that the woman at the motel reception seemed perfectly approachable.

12. [175]

    She agreed that, although she was late, she did not wish to go home or have a lift home because she “…just felt like staying out…” [TT139.15]

13. [176]

    She agreed that she must have remained in the motel room for many hours, bearing in mind that the three of them left the room after dawn had broken, and after a motel worker had spoken to about them being billed for a further night.

14. [177]

    She gave evidence that, in the morning and shortly before that departure, she had telephoned her mother and told her that she was coming home shortly. Her mother was upset with her.

15. [178]

    When Mr Hussain left the room the evening before, he was gone for about an hour. She agreed that, on his return, it was she and not Mr Khamis who wished to let him in again.

16. [179]

    She agreed that, when Mr Hussain was rubbing her thigh, she said nothing directly to him. She did say however that, when she asked Mr Khamis to get Mr Hussain to stop:

17. [180]

    Her position was that she spoke in that way repeatedly.

18. [181]

    With regard to Mr Hussain touching her body with his hand, when it was put to her that he did not digitally penetrate her vagina, the complainant said:

19. [182]

    She denied that, when speaking of events at the motel to Ms Johnson at about 10.30 the following morning, she told Ms Johnson that she had merely whispered her complaints to Mr Khamis. She did agree that there was a phone call between herself and Ms Johnson at about that time [TT 159.9 and following].

20. [183]

    Separately, she denied that she had in fact whispered to Mr Khamis, and said that she had been speaking loudly.

21. [184]

    Counsel for Mr Hussain tendered a map that showed the short distance between the motel and the home of the complainant, and it became Exhibit 1.

22. [185]

    Although she had spoken to Mr Khamis and not to Mr Hussain, the complainant agreed that there came a point during the sexual intercourse with Mr Hussain when she spoke to him directly by saying “Get off me, I’m going to have a shower”, and pushed hard against his chest [TT 163.19]. But she insisted that there had been a previous pushing by her, to which Mr Hussain responded by weighing himself down more firmly on her.

23. [186]

    She agreed that it was possible that, when the sexual intercourse came to an end, Mr Hussain entered the bathroom of the motel room for a short period before she did.

24. [187]

    Counsel for Mr Hussain put a number of propositions to the complainant [commencing at TT 145 of 16 April 2015]. Her responses were as follows.

25. [188]

    Her position was that she was wearing her singlet at all times.

26. [189]

    She agreed that there was no door between the motel room and the bathroom. She agreed that she used that bathroom to shower and urinate at least once each, and was in the bathroom a few times during the evening.

27. [190]

    She maintained the position that she pushed Mr Hussain to the chest twice.

28. [191]

    She had little memory of what she had done on the day in question before meeting Mr Khamis and Mr Hussain.

29. [192]

    She agreed that during the evening she said nothing directly to Mr Hussain to indicate that she did not wish to have sexual contact with him.

30. [193]

    She rejected the proposition that Mr Hussain did not masturbate and ejaculate on her leg.

31. [194]

    As for the following morning, she agreed that it was a short drive from the motel to her home. She reiterated the details of what occurred after she arrived home.

32. [195]

    She maintained the position that Mr Khamis asked where Ms Johnson was at the beginning of the evening, but the complainant told him that she had never been discussed as a possible attendee.

33. [196]

    The complainant agreed that, when speaking to Ms Johnson from the motel, the complainant may have told her that she would ask Mr Khamis and Mr Hussain whether they would be able to pick Ms Johnson up and bring her there. She did not know whether she had actually asked them to do so. It was put to her that Ms Johnson told her that Ms Johnson was happy to come to the motel; that the complainant told Ms Johnson that the complainant would ask whether the appellants would pick Ms Johnson up; but that she never did ask them. She denied those propositions.

34. [197]

    She rejected the proposition that she wished to be at the motel on her own, without Ms Johnson, and with Mr Khamis and Mr Hussain.

35. [198]

    She agreed with counsel for Mr Hussain that, on separate occasions before the morning when she slashed her wrists and was taken to hospital, she had engaged in a number of other acts of self-harm. Two of them involved slashing her wrists. More generally, she had been in the habit of pinching and scratching herself, which gave her some form of psychological relief.

36. [199]

    She was asked:

37. [200]

    She agreed that, when she had been dropped at home, she kissed each of the appellants goodbye on the cheek.

38. [201]

    In cross-examination by counsel for Mr Khamis, the complainant accepted that, after meeting Mr Khamis, she obtained his Facebook details from Ms Johnson.

39. [202]

    She agreed that on 11 February 2013, before she left home, her mother spoke to her about not staying out late.

40. [203]

    She agreed that she walked from her family home to the shopping centre where she had arranged to meet Mr Khamis.

41. [204]

    She could not recall whether the pizzas that had been purchased on the evening had chilli on them.

42. [205]

    She agreed that Mr Khamis and Mr Hussain were speaking in Arabic throughout the evening, but gave evidence that they also spoke English on occasion.

43. [206]

    She rejected the proposition that, when Mr Hussain was away from the car, Mr Khamis did not try to fondle her breasts and kiss her on the neck.

44. [207]

    She agreed that, once Mr Hussain had left the motel room, she may have asked Mr Khamis to help her remove her jeans. She also agreed that her police statement was to the effect that she consented to digital/vaginal penetration with Mr Khamis before they had penile/vaginal sexual intercourse.

45. [208]

    The complainant recalled that, after Mr Hussain had returned to the motel room, Ms Johnson telephoned her a number of times, and perhaps a male friend of the complainant whom I shall call Mr Miller.

46. [209]

    The proposition was put to the complainant that she never grabbed the hand of Mr Khamis in an effort to have Mr Hussain stop touching her in the genital area. She denied that proposition [TT 224.49].

47. [210]

    The complainant confirmed her evidence that she never actually saw the condom that she inferred was in the possession of Mr Hussain. And yet she was taken to her statement, in which she spoke of clearly seeing the condom. She agreed that she said nothing at that time to Mr Hussain, or to Mr Khamis.

48. [211]

    The complainant denied that she had not punched or pinched Mr Khamis, nor loudly asked him to get Mr Hussain to stop.

49. [212]

    She denied the proposition that, whilst the two of them were in the shower, Mr Khamis did not ask her what was wrong.

50. [213]

    She agreed that her statement was to the effect that, after the sun had risen, she saw that the two appellants were simply lying on the bed. She agreed that at that stage she neither dressed, nor sought to leave, even though she had not been threatened by either of the appellants. To the contrary, she agreed that she got into bed with the two appellants.

51. [214]

    She agreed with the estimate that she was in the motel room for about 12 hours in total.

52. [215]

    As for the anal sex that founded the acquittal count, count four, she rejected the proposition that Mr Khamis did not squeeze her neck. She denied that Mr Khamis did not say “I'll give you five minutes to sleep, but then the party starts”.

53. [216]

    She agreed that, when the three of them were leaving the room in the morning, she insisted on making the bed, and Mr Khamis helped her to do so.

54. [217]

    She agreed that, after she had kissed the two appellants goodbye, she also told them to “Drive safely”, as she considered that a polite thing to say.

55. [218]

    She agreed that she spoke to Ms Johnson at about 10.30 that morning. She also agreed that she had not commenced drinking vodka at that stage.

56. [219]

    As for the discussion with Mr Khamis on 22 February 2013, she agreed that he had helped her avoid a man who was bothering her. She agreed that Mr Khamis had spoken to her of the woman who had been at the motel reception desk on the evening in question. She also agreed that he had said:

57. [220]

    She agreed that, when she and Mr Khamis parted on that latter evening, they kissed each other on the cheek.

58. [221]

    She agreed that she had a friend by the name of Mr Miller. She agreed that she said to him on the day after the events at the motel “I'm feeling like shit, I've done something wrong”. When further conversation was put to her, she gave evidence that she could not remember it.

59. [222]

    The complainant agreed that that was a difficult time for her emotionally; in particular, she had recently discovered that her father was having an affair, of which her mother was ignorant at that stage.

60. [223]

    In re-examination, the complainant confirmed that, although her statement was signed on 30 July 2013, its preparation commenced on 20 February 2013.

61. [224]

    Having looked at the printout of text messages, she recalled that, on the evening in question, she had sent a text message to Ms Johnson. She also recalled having a conversation with one of the appellants about picking Ms Johnson up. She believed that that was Mr Khamis.

62. [225]

    As for previous incidents of self-harm, she gave evidence that pinching and punching of herself occurred on the same occasions when she cut herself. She spoke of pinching and punching and slapping herself perhaps three or four times a day.

63. [226]

    In evidence-in-chief, Mr Miller, the male friend of the complainant, gave evidence of knowing her in February 2013. He called her on the morning of 12 February 2013, and had a conversation with her. She did not sound well.

64. [227]

    He spoke to her later in the day, and she sounded distressed and abnormal. As a result, he went over to her home. He found the door open. The complainant was lying on the floor with a bottle of vodka close by. She had slashed her wrists. There were about 20 or 30 cuts. Some were deep. The complainant was lying on the ground crying and screaming. He could smell that she had been drinking.

65. [228]

    After about 15 minutes, the mother of the complainant arrived home. She called an ambulance. The complainant commenced vomiting. Mr Miller accompanied the complainant when she was taken away in an ambulance.

66. [229]

    At the hospital, the complainant had a conversation with a nurse. After that, Mr Miller had a conversation with the mother of the complainant, who rang the police. Police arrived at the hospital, and commenced to ask questions.

67. [230]

    Mr Miller returned to the family home of the complainant, and found the suicide note that became exhibit C.

68. [231]

    In cross-examination by counsel for Mr Hussain, Mr Miller confirmed that he had seen that note in close proximity to the complainant when he first arrived at her home.

69. [232]

    In cross-examination by counsel for Mr Khamis, Mr Miller discussed in detail the appearance of the complainant when he first arrived at her home.

70. [233]

    In the second phone call of that day, before Mr Miller arrived at the home, Mr Miller confirmed that the complainant said to him “I’m feeling like shit, I’ve done something wrong”, and later “I slept with two guys”, that she felt dirty, and “I just want to die” [TT 260.12 and following].

71. [234]

    Mr Miller also agreed that, according to his statement to police of 14 May 2014 (that is, seemingly over a year after the events in question), the complainant had spoken in terms very similar to the above to Mr Miller when he arrived at the home.

72. [235]

    He agreed that he had been friends with the complainant for quite some time, and was in the habit of speaking to her on a daily basis.

73. [236]

    Note from the jury, and answer to it

74. [237]

    After the conclusion of the evidence of Mr Miller, a note was received from the jury. Its contents were as follows:

75. [238]

    His Honour discussed the note with counsel in the absence of the jury. The trial advocate said:

76. [239]

    His Honour remarked:

77. [240]

    Neither defence counsel sought to be heard.

78. [241]

    Once the jury returned to the courtroom, his Honour said to them:

79. [242]

    That slip regarding names having been drawn to his attention, his Honour went on to correct it by saying:

80. [243]

    The mother of the complainant confirmed that the complainant was 17 years of age as at 11 February 2013. The witness recalled that on that day she had come home from work at about 5:30 PM. The complainant and other family members were present. There was a conversation about the complainant going out, and she was permitted to leave.

81. [244]

    During the course of the evening, the witness tried to contact the complainant by mobile phone, but was unable to do so. She woke at about 2:30 AM, saw that the complainant was still not home, sought to contact her again, but was again unsuccessful.

82. [245]

    At about 6:30 the following morning, the witness awoke to find that the complainant had still not come home, something that had never happened before. She went to work, and continued to seek to contact the complainant by mobile phone.

83. [246]

    At about 12:30 PM on 12 February 2013, the witness called her home phone, and thereby reached the complainant. She sounded intoxicated.

84. [247]

    Later at work, her mother saw a text message on her mobile phone from the complainant which read “I’m sorry, love you and I’m sorry”. She immediately travelled home, where she saw that Mr Miller was already present. The complainant was also there, seemingly drunk, unable to talk properly, and screaming that she wanted to die. Her mother also saw blood and cuts to the arms of the complainant.

85. [248]

    The complainant was taken to a bathroom where she vomited and passed out. An ambulance was called, and the complainant was conveyed to Liverpool Hospital.

86. [249]

    When her mother arrived at the hospital she saw the complainant on a hospital trolley, screaming that she wanted to die. Later, the witness overheard a conversation between the complainant and one of the nurses. The police were then contacted.

87. [250]

    On returning home, the witness found the suicide note of the complainant.

88. [251]

    There was no cross-examination of the mother of the complainant by counsel for Mr Hussain.

89. [252]

    In cross-examination by counsel for Mr Khamis, the witness agreed that the complainant had told her that she was simply going out to meet friends at a nearby shopping mall. She confirmed that she was unable to speak to her daughter until about 12:30 PM on the Tuesday. The subsequent text message had been received at about 3:50 PM that day.

90. [253]

    The witness agreed that she had told ambulance officers that, in her opinion, one reason that the complainant may have been upset was because the complainant had become aware that her father was having an affair.

91. [254]

    A DNA expert was called whose evidence in a nutshell was that sperm with a DNA profile consistent with that of Mr Hussain was located in a vaginal smear taken from the complainant.

92. [255]

    In cross-examination by counsel for Mr Hussain, the expert agreed that sperm can be contained in pre-ejaculate fluid.

93. [256]

    There was no cross-examination of the expert by counsel for Mr Khamis.

94. [257]

    Ms Johnson confirmed in her evidence that she was a good friend of the complainant as at 31 January 2013. She spoke of the meeting on that evening with the two appellants. Mr Khamis gave Ms Johnson his Facebook details. At that first meeting, it was Mr Khamis who was doing most of the talking between the four young people. At the end of the interaction, the two young women were given a lift to a shopping mall.

95. [258]

    On 11 February 2013, Ms Johnson received a call on her mobile phone from the complainant. At first the complainant sounded “normal” but after that she sounded “a bit jittery” and said that she was not feeling well [TT 297.45].

96. [259]

    The witness said that the complainant had asked her to come to the motel. Ms Johnson asked how she was supposed to get to that location, and the complainant replied that she would ask “the boys”. Eventually, Ms Johnson received a text message from the complainant to the effect that the distance was too far. That message was received some time after 11:27 PM on the Monday. The witness did not receive any further calls from the complainant that evening.

97. [260]

    The witness spoke to the complainant the next morning at about 10 o’clock. After that, Ms Johnson found out that the complainant was in hospital. Eventually, she telephoned Mr Khamis and had a conversation with him that evening,12 February 2013.

98. [261]

    In cross-examination by counsel for Mr Hussain, Ms Johnson confirmed that she had made a statement to police on 13 February 2013.

99. [262]

    She thought that the phone call from the complainant may have been at about 9 or 10 o’clock in the evening of 11 February. She agreed that the complainant had spoken of “the boys” booking a motel room for the night. She agreed that the named motel was quite close to the home of the complainant.

100. [263]

     Later, when the complainant requested her to come to the premises, Ms Johnson confirmed that she was happy to do so, but raised the question of transport. She confirmed that she later received a text message from the complainant to the effect that the distance was too far.

101. [264]

     As for the telephone conversation at 10:30 AM on Tuesday, 12 February 2013, the witness confirmed that the complainant said to her of Mr Khamis “his cousin started fingering me”. Ms Johnson asked “what did you [do]?” The complainant replied “I was pinching [Mr Khamis’s] leg whispering to him, telling him can you please tell your cousin to stop” [TT 314.12].

102. [265]

     According to the witness, the complainant said at that stage that she was fine, but concerned about pregnancy and sexually transmitted disease.

103. [266]

     Returning to the conversation of about 10:00 PM on Monday 11 February, the witness said that the complainant had said that she did not wish to stay at the motel for long, and was going to ask the appellants to take her home soon [TT 314.42].

104. [267]

     In cross-examination by counsel for Mr Khamis, the accuracy and honesty of the statement of the witness of 13 February was confirmed.

105. [268]

     As for the conversation at 10:00 AM on Tuesday 12 February, the witness described it as “normal”, though by the end of it the complainant was “sounding a bit like upset” [TT 316.14]. The witness agreed that the complainant said nothing at that stage about her neck being restrained and squeezed by Mr Khamis.

106. [269]

     The witness said that, at that stage, she and the complainant were best friends, and there was no problem in their relationship.

107. [270]

     As for the conversation between the witness and Mr Khamis, she confirmed the accuracy of her statement in that regard. In a nutshell, it recorded that Mr Khamis had said that the three young people had driven around for a time, they booked into a motel, he and the complainant kissed, she took off her pants, and the two of them had sexual intercourse. Ms Johnson had asked “Is that all you guys did?”, and Mr Khamis responded “Yeah, that’s all we did” [TT 317.36].

108. [271]

     Mr Khamis had agreed that he and the complainant had showered together. Mr Khamis also said to Ms Johnson that “…if she didn’t want to do anything with me, if she had’ve said no, I would’ve stopped and moved away” [TT 317.40].

109. [272]

     A detective gave evidence of attending the hospital on 12 February 2013 at about 7:00 PM. He saw a uniformed police officer there already. He spoke to the complainant, her mother, and Mr Miller. The complainant was in no emotional state to be interviewed.

110. [273]

     Various investigations were undertaken. They included travelling to the motel, and confirming with staff that people had been in the room, and were asked to leave at about checkout time.

111. [274]

     Later, the detective attended the family home of the complainant, and seized the suicide note.

112. [275]

     A statement commenced to be taken from the complainant on 20 February 2013.

113. [276]

     Mr Khamis was arrested on 7 November 2013 and subjected to a forensic procedure. Mr Hussain was arrested on the same day, and was also subject to a forensic procedure.

114. [277]

     The detective was shown a report in the witness box to the effect that, when she was at the hospital, the complainant was found to have a blood alcohol reading of 0.122.

115. [278]

     In cross-examination by counsel for Mr Hussain, the witness described the motel and the room in question. He described the furniture in the room as basically comprising a bed, a mirror, and a cabinet. He agreed that one could see into the bathroom from the main room.

116. [279]

     In cross-examination by counsel for Mr Khamis, the detective confirmed that, other than the subject of the trial, Mr Khamis had never been charged by police with an offence. The witness also confirmed that Mr Khamis exercised his right to silence on legal advice when arrested. He also provided the police with the contact details of Mr Hussain.

117. [280]

     In further cross-examination, counsel for Mr Hussain similarly confirmed that his client had never been charged with any other criminal offence; that he had exercised his right to silence; and that Mr Hussain had no criminal record. He also confirmed that each of the appellants had been born in January 1994 (meaning that they were each aged nineteen years as at February 2013).

118. [281]

     The next evidence in the trial was a statement that was read to the jury of a sexual health service doctor, who had examined the complainant at 8:45 PM on 12 February 2013.

119. [282]

     The doctor confirmed that the complainant had arrived at the hospital by ambulance at 4:28 PM.

120. [283]

     The following history was recorded:

121. [284]

     The doctor recorded that the complainant told her that she had showered since the events in question, and had scrubbed her genital area.

122. [285]

     In terms of physical examination, the cuts to the wrist previously discussed were noted. So was a “smaller, similar area of recent laceration on the top of the right leg” [TT 329.39]. A fresh abrasion near the urethra of the complainant was also observed.

123. [286]

     In her statement, the doctor expressed the opinion that self-harm can be a response to acute trauma. Alcohol can be used to numb emotions after trauma. Self-cutting is used to numb, or distract from, psychological pain.

124. [287]

     The conduct of the complainant on Tuesday 12 February was, in the opinion of the doctor, consistent with the sexual assault alleged, although the doctor was unable to say affirmatively that those behaviours were caused by a sexual assault.

125. [288]

     The doctor expressed the opinion that the complainant may still have been affected by alcohol when she was examined.

126. [289]

     The abrasion observed was considered to be consistent with penetration as described by the complainant, although the doctor also expressed the opinion that it could also be consistent with “scrubbing with a nail brush or very vigorous scrubbing with a rough towel or washer or similar object” [TT 331.14]. The doctor noted that, in her experience, victims of sexual assault often scrub themselves very vigorously.

127. [290]

     After the reading of that statement, the Crown case closed.

128. [291]

     Thereafter, in the absence of the jury, counsel for the two appellants made legal applications. Counsel for Mr Hussain drew attention to the fact that the evidence was of only one continuous act of penile/vaginal sexual intercourse between Mr Hussain and the complainant. He went on to say:

129. [292]

     He went on to say “In the way the evidence fell in my submission there was the single act of sexual intercourse of a penile/vaginal nature”.

130. [293]

     Counsel for Mr Khamis joined in the application.

131. [294]

     The trial advocate said:

132. [295]

     His Honour expressed agreement. Thereafter, in response to an enquiry from his Honour about count three, counsel for Mr Khamis said the following:

133. [296]

     Counsel for Mr Hussain joined in the application, and the trial advocate agreed with its validity.

134. [297]

     Thereafter, his Honour said the following to the jury:

135. [298]

     Thereafter, his Honour directed the jury to bring in a verdict of not guilty with regard to count two as against each appellant, and with regard to count three as against each appellant. The jury immediately complied, and the two verdicts of not guilty were entered.

136. [299]

     Mr Khamis was called as the first witness in his own case.

137. [300]

     He described the first meeting at the shopping centre on 31 January 2013 in unremarkable terms.

138. [301]

     He spoke of the Facebook messages that led up to the meeting of 11 February 2013. He said that, when they met that evening, the complainant gave both him and Mr Hussain a kiss.

139. [302]

     He denied that, whilst Mr Hussain was away from the car, he tried to touch the complainant on the breast or kiss her on the neck. He did agree that he had asked her for a kiss, which was refused on the basis that he had eaten pizza with chili on it, to which the complainant was allergic.

140. [303]

     He gave evidence that it was he who raised with the complainant his concern about the time at which she needed to be home. He said that it was she who first mentioned going to a motel.

141. [304]

     He spoke of the process of booking into the motel, and changing rooms because the first was unsatisfactory.

142. [305]

     He spoke of Mr Hussain leaving the room in order to obtain a charger for his phone.

143. [306]

     He gave evidence of the friendly conversation between himself and the complainant that culminated in the two of them having sexual intercourse. He said that it was she who asked that the door be opened for Mr Hussain when he returned. His evidence was that the consensual sexual intercourse having come to an end with the return of Mr Hussain, the demeanour of the complainant was normal.

144. [307]

     He spoke of the three of them lying on the bed, and said:

145. [308]

     He gave evidence of Mr Hussain getting up from the bed, entering the bathroom, and returning to the bed.

146. [309]

     After that, the complainant got up from the bed and went to have a shower. Mr Khamis joined her, with her agreement. After she left the shower, the complainant dried herself with a blanket, which she had been given by Mr Hussain.

147. [310]

     Mr Khamis gave evidence:

148. [311]

     He gave evidence that at that stage, it was the complainant who asked Mr Khamis not to go to sleep, and was pushing her buttocks against him whilst the two of them lay on the bed. After that, they had sexual intercourse again, which Mr Khamis believed to have been penile/anal sex. He denied that at that stage there was any physical force applied by him to the complainant. He also gave evidence that the complainant said nothing to indicate that she was not consenting to that intercourse.

149. [312]

     After that, the three young people slept, and were roused by the motel worker knocking on the door.

150. [313]

     They left in the car of Mr Khamis, with which he gave the complainant a lift to her home. When they arrived, she gave both of the young men a kiss on the cheek.

151. [314]

     At about 8:00 PM that evening, Ms Johnson telephoned Mr Khamis, and asked what he had done to the complainant. Ms Johnson spoke of the complainant being at hospital and complaining that she had been raped. He denied that to Ms Johnson. In answer to the question from Ms Johnson: “Okay, what did youse do in the motel?,” he gave evidence that he replied “It was up to her, started me and her started kissing and then had sex and stuff like that”.

152. [315]

     In response to the question of Ms Johnson: “Yeah, but did youse guys force her to do something like that?” he replied: “Look no, obviously no, it’s not like she turned around and said, ‘Look [Mr Khamis], don’t do this to me’ you know” [TT 371.19 and following].

153. [316]

     He gave evidence that at no stage whilst they were at the motel did the complainant ask Mr Khamis and Mr Hussain to go and pick up Ms Johnson.

154. [317]

     Mr Khamis gave evidence of the meeting with the complainant on 22 February 2013, and explained that she sought his help in avoiding another man who was bothering her. He asked the complainant about her attendance at hospital, but she replied that she had merely been sick. He also asked her:

155. [318]

     The complainant replied:

156. [319]

     Mr Khamis replied:

157. [320]

     When they parted, the complainant gave Mr Khamis a kiss on the cheek.

158. [321]

     The examination-in-chief concluded with the following questions and answers:

159. [322]

     Counsel for Mr Hussain did not cross-examine Mr Khamis.

160. [323]

     In cross-examination by the trial advocate, Mr Khamis was asked about the chance meeting with the complainant on 22 February 2013. He was reminded of his evidence about having spoken to the complainant on that occasion about his friends who had been to the motel. He expressed a reluctance to name those persons, but ultimately did so. He knew neither of their last names. He believed they lived in the area. He could not say how often he saw them.

161. [324]

     He denied that he knew the receptionist at the front desk of the motel, and he denied having been at that motel with his friends on any other occasion. He could not explain why the receptionist may have told his friends that the police enquiry was about him. Mr Khamis could not explain why the receptionist may have thought that the other two men were associated with him.

162. [325]

     He said that his friends had told him about that discussion about a month after the stay in the motel on 11 February 2013. It was suggested to him that that could not be correct, bearing in mind that he had given evidence of speaking about that discussion with the complainant on 22 February 2013. When that contradiction was put to him, he gave evidence:

163. [326]

     When asked why it would have been that receptionist would have asked his friends about him, he said that his friends always went to that motel.

164. [327]

     He was unable to say whether his friends had actually been at the motel on the day when the police attended. There was no reason why he had gone to this particular motel on the evening in question, and it had not been recommended to him by his friends.

165. [328]

     In answer to the question:

166. [329]

     Mr Khamis replied:

167. [330]

     The trial advocate reminded him of his examination-in-chief that it was the complainant who had done so. Mr Khamis reverted to that position. The following question and answer took place:

168. [331]

     With regard to the first meeting, he did not accept that he was complimentary to the complainant about her looks. He did accept that the Facebook messages were complimentary. He eventually agreed that, at the first meeting, he had been paying the complainant compliments.

169. [332]

     Mr Khamis agreed that, during the period when Facebook messages were passing between himself and the complainant, it was he who usually initiated contact. He agreed that, although he had said in examination-in-chief that the complainant kept calling him, that really only related to one night, 11 February 2013.

170. [333]

     He maintained that, whilst in the car in the absence of Mr Hussain, he did ask to kiss the complainant, but neither physically tried to do so nor tried to touch her breasts. His position was that the only reason Mr Hussain left the car was in order to buy a drink or wash his mouth out, having eaten some spicy pizza.

171. [334]

     He said that his intention at the motel was merely to “[j]ust hang out” [TT 385.25].

172. [335]

     His position was that, even if the complainant had not been with them, nevertheless it was quite possible that he and Mr Hussain would have checked into the motel together for the night. After that, they may have invited more friends to come and join them [TT 386.13].

173. [336]

     Mr Khamis agreed that, once they arrived at the motel, the three of them possessed no more food, nor alcoholic drinks, but asserted that they did have some non-alcoholic drinks with them.

174. [337]

     He agreed that he had some conversations in Arabic with Mr Hussain before the latter left the room. They were only to do with obtaining the phone charger, and using the motor vehicle of Mr Khamis in order to do so. When Mr Hussain left, although he took the keys to the car of Mr Khamis, in fact Mr Khamis did not know whether Mr Hussain would be returning to the room or not [TT 387.25]. If Mr Hussain had not returned, Mr Khamis would simply have caught a taxi home. Mr Khamis confirmed that there was no discussion about the return of Mr Hussain, and therefore no knowledge on the part of Mr Khamis as to whether Mr Hussain would return or not.

175. [338]

     When the complainant called Ms Johnson from outside the room, Mr Khamis was untroubled.

176. [339]

     He agreed that, before the consensual sexual intercourse took place between himself and the complainant, there was conversation, but it was not of a sexual nature.

177. [340]

     On the return of Mr Hussain, he maintained that it was the complainant who interrupted sexual intercourse and insisted that Mr Hussain be allowed back into the room. The following questions and answers occurred:

178. [341]

     After the three of them were lying on the bed, it was about 20 minutes before Mr Khamis felt some movements which, he inferred in the witness box, were the complainant and Mr Hussain having sexual intercourse. His position was that he had no idea at the time that the two of them were having sexual intercourse. Later, the following exchange occurred:

179. [342]

     He denied that the complainant called to him, punched him, or asked him to tell Mr Hussain to stop.

180. [343]

     He recalled Mr Hussain getting up and going to the bathroom after the bed had been shaking.

181. [344]

     Mr Khamis recalled hearing but not seeing Mr Hussain opening up a condom. He heard that before “…they were whatever they’re doing” [TT 393.11]. He believed that he had spoken to Mr Hussain about the condom. The following exchange occurred:

182. [345]

     When asked whether he had said to Mr Hussain words to the effect that sexual intercourse is better without a condom, Mr Khamis replied:

183. [346]

     The position of Mr Khamis was that, once the bed started shaking, he knew that Mr Hussain and the complainant were having sexual intercourse. He denied that the conversation about the condom meant that Mr Hussain and the complainant were going to have sex.

184. [347]

     He denied the Crown case about the complainant asking Mr Khamis to get Mr Hussain to stop. He agreed that he never heard Mr Hussain verbally seek the consent of the complainant. Indeed, Mr Khamis heard no conversation at all between the two of them. The complainant did not whisper anything to Mr Khamis. In fact, there was complete silence in the room, apart from the sound of the condom being opened.

185. [348]

     When asked to draw a contrast between his respectful approach in the car to the complainant and the complete absence of conversation between Mr Hussain and the complainant in the motel room, Mr Khamis responded:

186. [349]

     He maintained the position that there could have been a whispered conversation between the complainant and Mr Hussain that Mr Khamis did not hear, and that preceded the sexual intercourse.

187. [350]

     The trial advocate suggested to Mr Khamis that his counsel never put to the complainant in cross-examination that it was in fact she who asked Mr Hussain to lie on the bed on his return to the room, in accordance with the examination-in-chief of Mr Khamis.

188. [351]

     The position of Mr Khamis was that he never heard the complainant tell Mr Hussain to get off her. He did hear her simply say that she wished to have a shower. He was unable to remember what the complainant and Mr Hussain had been doing at that stage. He could not recall whether they were having sex at that stage, although there was still movement in the bed, and Mr Hussain was on top of the complainant. He did not know whether the complainant pushed Mr Hussain off her. She did tell him to get off her. At the time, according to the evidence of Mr Khamis, the complainant sounded “normal”.

189. [352]

     As for the shared shower, the position of Mr Khamis was that he asked the complainant whether he could join her.

190. [353]

     After the complainant left the shower, she sat near the bathroom door. Again, at that stage she was “normal”, and drying herself.

191. [354]

     The following exchange occurred:

192. [355]

     With regard to the acquittal count, Mr Khamis maintained the position that it was the complainant who wished to have further sexual contact with him. He agreed he said nothing as to consent on her part to having penile/anal intercourse, including, for example, the use of lubricant. The transcript is as follows:

193. [356]

     After the three young people had left the motel and were driving home, he agreed that the song that the complainant had spoken of was on the car sound system. He confirmed the lyrics that the complainant had recounted, but denied that the song was on repeat; rather, it was simply being broadcast by a radio station, and therefore could not be. His position was that the playing of that song in that car at that particular time was merely “a coincidence” [TT 404.48].

194. [357]

     Returning to the proposition that, if Mr Hussain had not returned with the car of Mr Khamis, Mr Khamis may have simply caught a taxi home, he agreed that he did not have enough cash with him in order to do so, but maintained that he had sufficient funds in his bank account.

195. [358]

     In the lead-up to the evening in question, the complainant had told him in a phone conversation that Ms Johnson would also be coming. He agreed that there was no mention of that in the messages that passed between the two of them.

196. [359]

     He denied that his intention when driving to the motel room was to have sexual intercourse with the complainant.

197. [360]

     With regard to the anal intercourse, the following exchange occurred:

198. [361]

     There was no re-examination of Mr Khamis by his counsel.

199. [362]

     Conclusion of case for Mr Khamis

200. [363]

     A character witness was called on behalf of Mr Khamis, who had known him for about seven years. He spoke highly of him as a worker, and with regard to his relationships with women. That was the close of the case for Mr Khamis.

201. [364]

     Mr Hussain was the first witness in his own case. He gave evidence through an interpreter.

202. [365]

     He gave evidence that, as at February 2013, he was 19 years of age. He described his English at that time as very limited, both in speaking and in comprehension of what others were saying. He gave details of his limited opportunities to learn English.

203. [366]

     He confirmed that he had never been charged with any other criminal offence at any stage.

204. [367]

     As for the first meeting with the complainant and Ms Johnson, he did not speak with them on that occasion due to his limited English. He agreed that, on that occasion, the complainant and Ms Johnson were given a lift to a shopping mall.

205. [368]

     He had no contact with either of the young women between that first meeting and 11 February 2013.

206. [369]

     On that latter occasion, he was aware that there had been contact between Mr Khamis and the complainant. Mr Khamis had told him of the proposed meeting between Mr Khamis and the complainant. He and Mr Khamis were good friends at that time.

207. [370]

     He gave evidence of the meeting, the subsequent drive through the suburbs, and the obtaining of food. As for the booking of the motel room, he gave evidence that that was after Mr Khamis and the complainant had been speaking in English. He could pick up “a word here or a word there, but I did not understand everything” [TT 419.9].

208. [371]

     He agreed that Mr Khamis obtained some money before they went to the motel, and soft drinks were obtained on the same occasion. He described the complainant as perfectly sociable and happy.

209. [372]

     With regard to the attendance at the motel, the following exchange took place:

210. [373]

     Mr Hussain spoke of the move to a different room. After a short while, he realised that his mobile phone needed recharging. He was away from the room for about 40 or 45 minutes before he returned.

211. [374]

     The following exchange occurred:

212. [375]

     Mr Hussain gave evidence that he returned to the motel because he did not have to work the next morning. He also thought that he believed that Ms Johnson would join the three of them. The transcript is as follows:

213. [376]

     He thought that because she had been with the complainant when they had first met, and he thought that she might be coming. He was looking forward to Ms Johnson joining them.

214. [377]

     He was aware of no occasion when the complainant asked either of the appellants to leave the room and go and pick up Ms Johnson.

215. [378]

     When he returned to the motel room, he knocked on the door and it was opened by Mr Khamis. Mr Khamis said nothing about the complainant, and she went into the bathroom. Mr Khamis was wearing a pair of shorts, and the complainant was wearing her underwear.

216. [379]

     Mr Hussain asked Mr Khamis whether he had had sexual intercourse with the complainant:

217. [380]

     The three of them lay on the bed, with the complainant in between the two young men. She was still wearing her underwear. She never said anything about wishing to leave. If she had asked to be taken home, Mr Hussain would have complied. There were occasions when the complainant left the room, but neither Mr Khamis nor Mr Hussain left with her.

218. [381]

     Whilst the three of them were lying on the bed, they were watching an amusing video clip on Facebook. The three of them were under the bedcovers. Mr Hussain commenced to touch the complainant. He began to rub her upper thigh with his right hand for about three to five minutes. At the time “I just wanted to see if she was willing or not” [TT 428.44]. The complainant said nothing. Mr Hussain commenced to rub her vagina through the outside of her underpants. He did that for four or five minutes. Thereafter, he rubbed her vagina from under her underpants. When he touched the complainant in that way, she did not say anything.

219. [382]

     Whilst Mr Hussain was rubbing the genital area of the complainant, she grabbed the hand of Mr Khamis and placed it over the hand of Mr Hussain. Mr Hussain withdrew his hand, as did Mr Khamis [TT 432.32]. At the time, Mr Hussain believed that the complainant wished to have sexual contact with him and Mr Khamis at the same time, to which he did not consent. After the hand of Mr Khamis was removed, Mr Hussain replaced his hand.

220. [383]

     Mr Hussain removed the underpants of the complainant, and she facilitated that by lifting her back up from the bed. Mr Hussain produced a condom from his wallet which he tried to place on his penis. He was unable to do so, so he threw it away onto the floor of the motel room. Whilst he was removing the condom from its packet, the complainant said nothing. At the time, Mr Hussain believed that she was consenting to having sexual intercourse with him.

221. [384]

     Penile/vaginal sexual intercourse ensued, and went on for about 10 minutes. Whilst they were having sexual intercourse, the complainant put her hand or hands on the chest of Mr Hussain. She pushed him. He stopped immediately, and went to the bathroom. Mr Hussain regarded the pushing of his chest as an indication that, at that stage, the complainant was not consenting to sexual intercourse. He got off her immediately because he wished to do nothing without her consent. He masturbated to ejaculation in the bathroom.

222. [385]

     He returned to the bed, and used his mobile phone to catch up with social media. The complainant went to the bathroom, and Mr Khamis followed her.

223. [386]

     When the two of them re-emerged from the bathroom, Mr Hussain was awake. He was still using his mobile phone at that stage.

224. [387]

     After that, Mr Hussain felt sleepy, and was turned away from Mr Khamis and the complainant, who was again between them. He fell asleep and knew nothing of what happened after that.

225. [388]

     He woke in the morning when somebody knocked on the door. At that stage, the complainant was “talking, chatting and laughing normally” [TT 437.20]. The three of them left the motel, and the complainant directed Mr Khamis to drive to her home. On departure, she gave each of the young men a kiss on the cheek.

226. [389]

     Mr Hussain denied that he raped the complainant that evening; denied that he was part of any joint criminal enterprise with Mr Khamis to do so; and gave character evidence on his own behalf that he would never do such a thing.

227. [390]

     There was no cross-examination of Mr Hussain by counsel for Mr Khamis.

228. [391]

     The cross-examination of Mr Hussain by the trial advocate commenced as follows:

229. [392]

     Mr Hussain was cross-examined at length about his knowledge of English as at February 2013. He agreed that, after having studied English for a short period, he was placed in year 10 at a Technology High School. He agreed that he had been assessed as being capable of being placed at that level. He agreed that the classes in year 10 were conducted in English, but gave evidence that he did not understand much. His position was that his command of English as at the time of the trial (April 2015) was “a little bit better” than it had been in February 2013 [TT 442.19].

230. [393]

     He agreed that, on occasion during his examination-in-chief, he had actually corrected the translation provided by the interpreter. For example, when the interpreter had translated a word as “pyjama”, Mr Hussain had corrected the interpreter to the word “shorts”. He also answered at least one question immediately, without the need for a translation of it by the interpreter.

231. [394]

     As for 11 February, when Mr Hussain left the car, he did not agree that Mr Khamis had asked him to do so, so that Mr Khamis could be alone with the complainant. He did not know at the time that Mr Khamis liked the complainant. He had not spoken with Mr Khamis about the complainant at all. Mr Khamis only told Mr Hussain about the arrangement to meet the complainant about five minutes before they drove to the agreed location. Mr Khamis said nothing about any liking on his part for the complainant, or whether he found her attractive. Before they met up with the complainant, Mr Hussain believed that they would simply drive around with her in the motor vehicle of Mr Khamis.

232. [395]

     As to whether he had got out of the car and left the complainant and Mr Khamis alone there together, at first Mr Hussain seemed to deny that [TT 450.13 and following]. Although he agreed that he left the car, he seemed to be saying that the two of them came with him. It was clarified that, after the pizza was obtained, he left in order to obtain a drink because the pizza had been very hot [TT 450.37]. He also went to a bathroom in order to wash his mouth.

233. [396]

     After his return to the car, there was discussion about going to a motel. He picked up the word from the conversation in English, and thereafter Mr Khamis spoke to him in Arabic. He did not speak to the complainant after the idea of going to a motel was discussed.

234. [397]

     The following exchange took place:

235. [398]

     Mr Hussain was unable to confirm whether Mr Khamis knew the two persons who Mr Khamis had said had heard the enquiry about Mr Khamis of the motel receptionist. The transcript is as follows:

236. [399]

     The following exchange occurred:

237. [400]

     As for the belief of Mr Hussain that Ms Johnson may be joining them that evening, that was simply based on something that Mr Khamis had told him the complainant had said, and because Ms Johnson was a friend of the complainant. Mr Khamis had told him that, when they first met, the complainant and Ms Johnson had said that the four of them would meet again. He agreed ultimately that he was “just hoping” that Ms Johnson would be there when he returned to the motel [TT 457.10].

238. [401]

     Mr Hussain agreed that one of the reasons he stayed away from the motel room was in order to give Mr Khamis and the complainant time alone together. That was because it was Mr Khamis who had brought the complainant to the motel room, and he had also paid for the room. Mr Hussain did not agree that when he departed the room, he expected Mr Khamis and the complainant to have sexual intercourse.

239. [402]

     Mr Hussain disagreed with the proposition that he had done the same thing when he left the motor vehicle, and gave evidence that that was merely to obtain a drink after having eaten a spicy pizza.

240. [403]

     On his return to the room, Mr Hussain could see that the complainant was wearing only underwear. He was unable to recall the state of lighting in the room.

241. [404]

     Mr Hussain confirmed that Mr Khamis had told him that he had had sexual intercourse with the complainant. Mr Khamis did not say that Mr Hussain had come back before Mr Khamis had ejaculated.

242. [405]

     Mr Hussain maintained the position that, when he was touching the complainant, he did not hear her say anything to Mr Khamis. His position was that he would be too embarrassed to ask a woman whether she would like to have sex with him, but rather adopted the measure of touching her to see whether the complainant consented.

243. [406]

     The following exchange occurred:

244. [407]

     Later, Mr Hussain gave evidence that he would not interpret the fact that the complainant did not do anything or say anything as anything other than consent on her part, bearing in mind the intimate touching in which he was engaging.

245. [408]

     Mr Hussain denied that he masturbated to ejaculation whilst lying next to the complainant. He confirmed that the complainant did indeed place the hand of Mr Khamis on top of his hand when Mr Hussain was rubbing the vagina of the complainant. Before that time, Mr Hussain did not hear the complainant say anything to Mr Khamis.

246. [409]

     Mr Hussain denied that Mr Khamis lifted up the blankets, laughed, and then got out of bed. He did not hear Mr Khamis say to the complainant that she would “like it”. He denied that he digitally penetrated the vagina of the complainant. When he produced the condom from his wallet, he was still in bed.

247. [410]

     The following exchange occurred:

248. [411]

     Mr Hussain had no memory of Mr Khamis having told him that the complainant was using an oral contraceptive. He agreed that he did not use a condom when he had sexual intercourse with the complainant, but claimed that that was because the condom was too small for his penis, the condom having been given to him by a friend. He denied that the real reason that he did not use the condom was because of the conversation that he had had with Mr Khamis. He denied that a conversation about the complainant using an oral contraceptive was in English.

249. [412]

     Mr Hussain denied that the complainant had pushed him in the chest on two occasions whilst they were having sexual intercourse. He claimed that, while they were having sexual intercourse, the complainant was making sounds that indicated to Mr Hussain that she was enjoying it. He agreed that, during the ten minutes of the sexual intercourse, the complainant did not kiss him. He did not accept that, when the complainant pushed him to the chest, he knew that she was angry. He got off her because he wished to comply with her wishes. At no stage did he subsequently ask her why she had had pushed him off her.

250. [413]

     The following exchange occurred:

251. [414]

     After the return of Mr Khamis and the complainant from the shower, Mr Hussain fell asleep.

252. [415]

     Mr Hussain agreed that at no stage did he enquire of the complainant or Mr Khamis (as translator) why the complainant, after 10 minutes of sexual intercourse, abruptly brought it to an end. He agreed that the sexual intercourse had ended unusually, but he was not concerned to find out why.

253. [416]

     He denied the proposition that he was awake when Mr Khamis had sexual intercourse again (that is, the acquittal count) with the complainant.

254. [417]

     He agreed that the car radio was on during the drive from the motel, but he could not remember a particular song.

255. [418]

     He rejected the proposition that, before the plaintiff pushed him in the chest, she had been asking Mr Khamis to get Mr Hussain off her, and asking Mr Khamis to tell Mr Hussain to stop.

256. [419]

     In re-examination, Mr Hussain confirmed that, during sexual intercourse, the complainant was making sounds that indicated that it was a pleasurable experience for her.

257. [420]

     He gave evidence that, at the time he was seeking to put the condom on, he could see that the complainant could see him.

258. [421]

     He gave evidence that was there was no comparison between his English and 2013 and his English in 2015, there having been a marked improvement.

259. [422]

     He explained his tiredness on the evening in question by the fact that he had been working hard during the day.

260. [423]

     Conclusion of the case for Mr Hussain

261. [424]

     The case for Mr Hussain continued with evidence from the brother of Mr Hussain, who gave character evidence.

262. [425]

     His case concluded with character evidence from a man who had had known Mr Hussain for many years, and had employed him in Australia.

263. [426]

     There was no case in reply for the Crown.

Summing-up

1. [427]

   The following parts of the summing up are relevant to ground one.

2. [428]

   At pages 5 to 6 of the summing up, his Honour explained that count one was based on the allegation that Mr Hussain had penile/vaginal sexual intercourse with the complainant without her consent, knowing that she was not consenting, in the presence of Mr Khamis, and that Mr Khamis was part of a joint criminal enterprise with regard to that crime.

The appellant appeals his conviction on the ground that his trial miscarried because counts 1 and 2 were not properly particularised.

1. [429]

   In written submissions, emphasis was placed by senior counsel for Mr Khamis upon the fact that the complainant gave evidence of only one episode of penile/vaginal sexual intercourse between herself and Mr Hussain.

2. [430]

   It was said that, in truth, the evidence actually given by the complainant before the jury was not consistent with count one as particularised in the opening by the trial advocate; rather, it was consistent only with count two.

3. [431]

   Emphasis was placed upon the note from the jury, and the fact that it bespoke confusion, in that the jury spoke of understanding counts one and two, when in fact there was evidence of only one episode of sexual intercourse between the complainant and Mr Hussain.

4. [432]

   It was not disputed that there should have been a verdict by direction of not guilty on one of the counts alleging sexual intercourse between the complainant and Mr Hussain. But the written submissions assert that the directed verdict of not guilty should have been upon count one, not count two.

5. [433]

   It was said that the position that had developed was not sufficiently explained to the jury, with the result that there must have been confusion on its part. The fact that the jury deliberated for almost three days was relied upon as suggestive of that confusion.

6. [434]

   The written submissions concluded with the proposition that it was incumbent upon the prosecution to particularise the counts with certainty. That was not done, it was submitted, and the error was compounded by the responses to the situation that had developed on the part of the trial judge and each of the defence counsel.

7. [435]

   In oral submissions, it was said with regard to the opening to the jury by the trial advocate that “[t]he whole of what was opened on count 2 ended up being count 1”, by reference to count two having been a separate episode of sexual intercourse without consent, featuring a complaint made by the complainant to Mr Khamis, the complainant pushing Mr Hussain off her, and Mr Hussain getting up off her and going into the bathroom. Subsequently, it was accepted by senior counsel that the delineation in the opening of which attributes attached to which count was “not terribly clear”.

8. [436]

   It was said that the trial judge and all three advocates may have understood which count was being taken from the jury and which count remained, but comprehension on the part of the jury was another matter entirely.

9. [437]

   Emphasis was placed on the proposition that, at the time of the sending of the note, the jury must have misunderstood, for the simple reason that there had only been evidence of one episode of sexual intercourse between the complainant and Mr Hussain.

10. [438]

    The length of deliberations was emphasised as supporting the suggestion that there was confusion on the part of the jury, even at the end of the trial.

11. [439]

    The oral submissions of senior counsel concluded by emphasising that the jury note, far from showing understanding, showed misunderstanding, and nothing was sufficiently done in the trial to cure that misunderstanding.

12. [440]

    Turning to my determination of this ground, a number of points can be made at the outset.

13. [441]

    First, the length of the deliberations of almost three days does not, in my opinion, suggest confusion on the part of the jury. Two young men of good character were on trial, and, by the time of deliberations, there remained two serious counts which pertained to each of them. The length of deliberations is unremarkable, and would be so even if one person were on trial for one count. The time taken by the jury to reflect suggests nothing other than conscientiousness.

14. [442]

    Secondly, as my summary of, and extracts from, the opening of the trial advocate show, count one and count two were particularised with clarity.

15. [443]

    Count one was said to have occurred immediately after the interaction between Mr Hussain and the condom. During that first alleged episode of sexual intercourse, the complainant spoke to Mr Khamis about removing Mr Hussain. She also put her hand on the chest of Mr Hussain in an attempt to push him off her. The sexual intercourse that founded count one ended, according to the opening, and the complainant simply lay on the bed.

16. [444]

    Count two was said to be founded upon Mr Hussain getting back on top of the complainant, and having sexual intercourse with her again. As the extract at [117] above shows, count two was said to have featured the complainant forcefully pushing Mr Hussain to the chest, and asking him to get off her whilst she was speaking of having a shower. Count two was opened as coming to an end at that stage.

17. [445]

    Thirdly, it is quite true that, as the evidence was actually given by the complainant, she spoke of only one episode of sexual intercourse, which melded attributes of count one and count two as opened to the jury by the trial advocate.

18. [446]

    Fourthly, it is also quite true that, at the time that the jury composed its note, its members were, in truth, confused. That is because, although they wrote of understanding counts one and two, the complainant had given evidence of only one continuous episode of sexual intercourse between herself and Mr Hussain.

19. [447]

    Fifthly, it is also quite true that that confusion was not dispelled at the time of the answer by his Honour to the note. That is because, in accordance with orthodox procedure, verdicts of acquittal were not directed until the Crown case had closed.

20. [448]

    It is one thing, however, to accept that, at the time of the sending of the note and for a time thereafter, the jury was confused. It is quite another to accept that, in light of all that subsequently occurred, the conviction of Mr Khamis on count one should be quashed.

21. [449]

    In my opinion, when the verdict of not guilty was directed on count two, the trial judge made it perfectly clear to the jury that count one – a straightforward allegation that Mr Hussain had sexual intercourse with the complainant without her consent, and that Mr Khamis was part of a joint criminal enterprise with regard to that offence – pertained to the single episode of penile/vaginal sexual intercourse between the complainant and Mr Hussain of which she had given evidence before the jury.

22. [450]

    The fact that there was divergence between the opening of the trial advocate, and the evidence actually given in the Crown case is not uncommon, and of little moment in light of the clarity of that judicial explanation.

23. [451]

    Furthermore, it is important, I think, not only for the purposes of r 4 of the Criminal Appeal Rules (NSW) but more generally, that neither defence counsel at trial wished to be heard against a verdict by direction being entered on count two, but the trial continuing with regard to count one.

24. [452]

    Nor did either defence counsel take exception to the explanation given by the trial judge to the jury at the time of the verdict by direction on count two.

25. [453]

    Nor did either of them take exception to any aspect of the summing-up about the remaining count one.

26. [454]

    That continuing contentment on the part of both counsel, including counsel for Mr Khamis, supports the proposition that they considered that there was no problem about the understanding of the jury of the remaining count.

27. [455]

    Finally, looking in overview at the situation that developed, in short the advocate for the Crown opened that there had been two episodes of sexual intercourse without consent between the complainant and Mr Hussain. In the event, the complainant gave evidence of only one such episode. With the consent of both defence counsel, one of the counts on the indictment founded on an allegation of sexual intercourse between the complainant and Mr Hussain was taken from the jury. The other count remained, and resulted in a verdict of guilty against both appellants.

28. [456]

    In those circumstances, I cannot accept that the appropriate remedy for any confusion that existed in the minds of the jury for a time would be to quash the conviction on the single count that was placed before the jury as being reflective of the single episode of sexual intercourse that was in evidence, and that was not disputed by any party to have occurred between Mr Hussain and the complainant.

29. [457]

    I would not uphold this ground.

The second ground

1. [458]

   In written submissions, the following aspects of the evidence were emphasised by senior counsel for Mr Khamis.

2. [459]

   The complainant was party to all that preceded the offence in the motel room. That included the fact that she spent time with both young men; she must have been aware of the sexual interest that Mr Khamis had in her; the easy walk from the motel to the home of the complainant; the fact that far from trying to leave, she was happy to stay; the ease with which the complainant could have raised any alarm with the female receptionist; the fact that the unattractive nature of the motel room itself was suggestive that the focus was to be sexual activity; and the fact that the complainant left the room for a time, spoke to the receptionist, used the bathroom downstairs, and then returned to the room.

3. [460]

   One would accept that the complainant did not ask either applicant to go and collect Ms Johnson. In light of the fact that the presence of Ms Johnson was expected, one could infer that if he had been asked to fetch her, Mr Khamis would have been happy to do so.

4. [461]

   The complainant had access to her mobile phone throughout the whole night, and she was using it to send text messages and to post to Facebook. She ignored the attempts of her mother to contact her. One could infer that her explanation to Ms Johnson the following morning that she did not call Ms Johnson because her phone battery expired was a deliberate lie.

5. [462]

   The clear evidence of the complainant was that the penile/vaginal sexual intercourse with Mr Khamis in the absence of Mr Hussain was consensual. And yet she told the examining doctor nothing of consensual penal/vaginal intercourse.

6. [463]

   As for the penile/vaginal intercourse with Mr Hussain, the variation between the opening of the trial advocate with regard to there having been two such episodes, and the evidence actually given of only one such episode, itself casts doubt on the credibility of the complainant.

7. [464]

   Exploring that sexual intercourse in more detail, it was the complainant who wished to re-admit Mr Hussain on his return to the room. When he entered, she did not dress fully, and returned to bed. Nor did she object to the three young persons being in bed together.

8. [465]

   The complainant spoke of unwanted sexual contact between Mr Hussain and herself, including his masturbation leading to ejaculation. And yet she did nothing through words or actions to indicate her lack of consent thereto.

9. [466]

   Her evidence about whether she had actually seen Mr Hussain manipulating the condom was not consistent with her statement to police, and furthermore changed during the trial.

10. [467]

    It would have been physically difficult for the complainant to “pinch and punch” Mr Khamis whilst she was lying underneath Mr Hussain during intercourse. Even if she did engage in that conduct, it may have been misinterpreted by Mr Khamis.

11. [468]

    The evidence of Ms Johnson that the complainant spoke the following morning of having “whispered” her lack of consent is starkly inconsistent with the evidence of the complainant that she spoke to Mr Khamis loudly enough for both young men to have heard. And if Mr Hussain was distracted by the experience of sexual intercourse and was making noises of enjoyment himself, it is perfectly possible that he himself did not hear such a whisper.

12. [469]

    The proposition that the complainant pushed Mr Hussain to the chest twice was called into question on a number of bases, not least the fact that, when she pushed him to the chest the second time, he did bring the sexual intercourse to an end, despite not having ejaculated.

13. [470]

    Despite having been (on her evidence) the object of unwanted sexual intercourse on the part of Mr Hussain, the complainant took part shortly thereafter in a shower with Mr Khamis. The conversation in the shower of which she gave evidence, about her lack of consent to sexual intercourse with Mr Hussain, had been denied on oath by Mr Khamis.

14. [471]

    After the shower, there were countless opportunities for the complainant to depart, or at the least, contact others; she did neither. Instead, she returned to the bed with Mr Khamis.

15. [472]

    The failure of the jury to be satisfied beyond reasonable doubt on count four as against either applicant can, according to the written submissions of senior counsel for Mr Khamis, be taken into account by this Court in assessing the quality of the evidence underpinning the conviction on count one.

16. [473]

    Finally with regard to this particular topic, the subsequent actions and inaction of the complainant in the hours after the sexual intercourse with Mr Hussain demonstrate that she was not distressed by that episode.

17. [474]

    Separately, the complainant spoke to her male friend Mr Miller of having “done something wrong”, and having “slept with two guys”. She also wrote in the suicide note “…I can’t do anything right, I just make mistakes after mistake I just fuck everything up …” It was said that those statements are not suggestive of a person who is the victim of sexual assault; they are suggestive of a person who has had consensual sexual intercourse with two other persons, and has quickly come to regret it bitterly.

18. [475]

    Finally, the written submissions invite attention to the acquittal of both applicants on count four. I understood senior counsel not to be relying upon inconsistency of verdicts as a discrete ground, but rather to be submitting, as I have said, that one must consider the quality of the evidence underpinning the conviction on count one bearing in mind that the jury was not satisfied beyond reasonable doubt of what the complainant had to say about count four.

19. [476]

    In oral submissions, senior counsel for Mr Khamis emphasised the following.

20. [477]

    Ms Johnson gave evidence of the complainant speaking of having whispered her lack of consent. Not only that, the complainant was inconsistent about whether she had said that to Ms Johnson or not.

21. [478]

    The complainant said nothing directly to Mr Hussain indicating her lack of consent. On one reading, what she claimed to have said to Mr Khamis was not said until after Mr Hussain had commenced to have sexual intercourse with her. And all of that occurred after – according to what the complainant had told the police – she had observed Mr Hussain manipulating a condom.

22. [479]

    Even allowing for the fact that the “objective” state of mind of Mr Hussain with regard to count one pursuant to s 61HA(3)(c) of the Crimes Act was left to the jury, still and all the verdict is unreasonable. That is because it could not be said, beyond reasonable doubt, that Mr Hussain had no reasonable grounds for believing that the the complainant consented to the sexual intercourse.

23. [480]

    The seemingly suicidal distress of the complainant after the sexual intercourse was just as consistent with regret at having consented as it was with trauma at having been sexually assaulted; in that regard, the longstanding mental instability of the complainant needs to be borne in mind.

24. [481]

    Speaking generally, there were many inconsistencies in the evidence of the complainant, not least with regard to whether or not digital/vaginal penetration occurred on the part of Mr Hussain, and whether or not the complainant had actually seen Mr Hussain manipulating the condom.

25. [482]

    The complaint to the doctor was not consistent to the evidence of the complainant.

26. [483]

    Finally, each of the applicants led impressive evidence of his good character.

27. [484]

    In written submissions, counsel for Mr Hussain invited attention to the following.

28. [485]

    The trial advocate had opened on the expectation that the complainant would give evidence in support of counts two and three. Each of those was an allegation of sexual intercourse without consent against one appellant, with a further allegation against the other as being guilty by way of joint criminal enterprise. And yet the complainant had given no such evidence. That divergence between what the complainant was expected to say and what she actually did say plays a role in calling into question her reliability with regard to count one.

29. [486]

    Speaking generally, counsel accepted that the mere fact that the complainant consented to spend the evening in a motel room near her home with two young men does not of itself suggest that she consented to a sexual encounter involving both of them. But seen in the light of other evidence – the lack of complaint to any person at the motel; the complainant remaining the whole night with both young men; the lack of complaint to Mr Hussain directly with regard to his sexual conduct preceding count 1; her lack of disagreement when Mr Hussain entered the bed; her lack of comment when Mr Hussain sought to place a condom on his penis; and the fact that, when the complainant was dropped off at home, she kissed each young man goodbye – at the least, all of that would lead Mr Hussain to form an honest and reasonable belief that the complainant agreed to have sexual intercourse with him. (I infer that this written submission is directed towards resistance to the proposition that Mr Hussain could safely have been found guilty on the basis of the “objective” culpability to be found in s 61HA(3)(c) of the Crimes Act.)

30. [487]

    The complaint to the doctor of repeated penile/vaginal penetration by two men was not consistent with the evidence at trial of the complainant that there had been one assaultive episode of penile/vaginal intercourse with Mr Hussain, and one assaultive episode of penile/anal penetration with Mr Khamis.

31. [488]

    Although the subsequent emotional state of the complainant could be said to be consistent with the trauma of having been sexually assaulted, it was equally consistent with a state of regret about having had consensual sexual intercourse with two young men.

32. [489]

    Mr Hussain cooperated with police, and was a person of prior good character.

33. [490]

    The kisses goodbye were not consistent with the young woman who had just been sexually assaulted by the two recipients thereof.

34. [491]

    The denial on oath of Mr Hussain was not shown to be false.

35. [492]

    In chief, the complainant spoke of digital/vaginal penetration committed by Mr Hussain. In cross-examination, she could not recall whether that had actually occurred.

36. [493]

    Counsel submitted that the complainant was evasive in her evidence about the crucial conversation at 10:30 AM the following day, when she spoke to Ms Johnson about having whispered her protestations about the behaviour of Mr Hussain to Mr Khamis, in that the complainant gave evidence that she could not recall saying that.

37. [494]

    The evidence of the complainant that she did not see a condom being manipulated by Mr Hussain was inconsistent with the contents of her statement to police, in which she had spoken of actually seeing Mr Hussain attempting to place a condom on his erect penis.

38. [495]

    Finally, as a matter of practicality, the acquittal of both Mr Hussain and Mr Khamis on count four must mean that the jury had a reasonable doubt with regard to the evidence of the complainant in support of that count. That can play some role in the assessment by this Court of the evidence with regard to count one.

39. [496]

    In oral submissions, counsel for Mr Hussain relied upon all that he had written, and further emphasised the following.

40. [497]

    The evidence of the complainant as to her communication of her lack of consent to penile/vaginal intercourse with Mr Hussain was crucial to the conviction on count one. That evidence was directly contradicted by the evidence of Mr Hussain that he heard nothing to that effect. And the evidence for the complainant about what she had said and – just as importantly – how loudly she had said it, was disparate and unreliable.

41. [498]

    Although separate written submissions were provided by the Crown with regard to each application, it is convenient to summarise each of them globally.

42. [499]

    It was said that the age of the complainant is of great importance in assessing her acts and words. It is to be remembered that, on the evening in question, she had only just turned 17 years of age.

43. [500]

    The complainant gave evidence over an extended period and was cross-examined by two defence counsel. The jury was in a very good position to assess her credibility.

44. [501]

    Each of the applicants in his evidence tried to distance himself from the sexual activity of the other. It strains credulity that Mr Khamis, having been interrupted by the return of Mr Hussain, would have so little interest in the subsequent sexual contact of Mr Hussain with the complainant. The evidence of Mr Hussain about the behaviour of Mr Khamis to do with the sexual contact between Mr Hussain and the complainant also adversely affects the credibility of Mr Hussain.

45. [502]

    The fact that the complainant consented to penile/vaginal sexual intercourse with Mr Khamis in the motel room says nothing about her consent to any intercourse with Mr Hussain.

46. [503]

    The question of the attendance of Ms Johnson at the motel is answered by the text of the complainant to Ms Johnson to the effect that the distance was simply too far. That is consistent with the recollection of the complainant that one or other of the young men had told the complainant that the distance to pick up Ms Johnson was too far.

47. [504]

    The history taken by the doctor from the complainant features only some direct quotes, must therefore be understood as a summary in the words of the doctor, and is reasonably consistent with the evidence of the complainant.

48. [505]

    The fact that the complainant was content for Mr Hussain to re-enter the motel room hardly demonstrates that she was subsequently content to have sexual intercourse with him.

49. [506]

    It may be accepted that the complainant did not protest verbally to Mr Hussain. But she did protest to Mr Khamis, a man with whom she had been intimate shortly beforehand, and to whom she patently felt closer than Mr Hussain.

50. [507]

    The inconsistency about seeing the condom or not is neither here nor there, and the kind of inconsistency that one might expect from a young victim of sexual assault.

51. [508]

    Even if, as Ms Johnson said the complainant had said, the complainant protested in a whisper to Mr Khamis, Mr Hussain – who was lying on top of the complainant – must surely have heard what she had said.

52. [509]

    The discrepancy as to whether or not there had been digital/vaginal penetration by Mr Hussain is entirely to be expected in the circumstances.

53. [510]

    It would have been perfectly natural for the complainant to be circumspect with her male friend Mr Miller, and for her suicide note not to be fulsome. Separately, wrongly blaming oneself and feeling misplaced regret is a common experience of victims of sexual assault.

54. [511]

    It was accepted that kissing each man goodbye the following morning was one of the aspects of the Crown case that did not fit within the “classic picture” of sexual violation leading to the raising of a “hue and cry”. But, it was submitted, that conventional formulation is hardly the only way in which a victim of sexual assault may respond.

55. [512]

    Finally, the acquittal of both appellants on count four pertaining to Mr Khamis having penile/anal intercourse with the complainant is of no moment in assessing the reliability of the evidence underpinning count one. Not only had the complainant previously engaged in consensual sexual intercourse with Mr Khamis, but also both Mr Khamis and Mr Hussain gave sworn evidence that, at the relevant time, Mr Hussain was asleep.

56. [513]

    In oral submissions, the Crown prosecutor emphasised the following aspects.

57. [514]

    Even if the complainant spoke in a whisper, Mr Hussain must have heard her protestations to Mr Khamis.

58. [515]

    Separately, understandable and natural difficulties with memory on the part of the complainant do not render the conviction on ground one unsafe.

59. [516]

    One may accept the oddity of the complainant making her protestations about the conduct of Mr Hussain to Mr Khamis. But one should recall her age; her closer familiarity with Mr Khamis; and the fact that she had been intimate with him shortly beforehand. It is not surprising that she would look to Mr Khamis to stop the conduct of his cousin.

60. [517]

    It was accepted that the Crown case with regard to the complainant conveying to Mr Hussain that she did not consent to sexual intercourse with him was grounded upon the words said to Mr Khamis.

61. [518]

    Finally, as for the evidence of Ms Johnson that the complainant had told her of having whispered her protestation the preceding evening, the Crown prosecutor submitted that that could have simply been a failing of memory, or a failure of understanding, on the part of Ms Johnson.

Determination

1. [519]

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63, remains the touchstone in determining a ground such as this. It was referred to by the High Court of Australia with approval as recently as in Irwin v The Queen [2018] HCA 8.

2. [520]

   I believe that it is useful to set out the entirety of what the plurality said about the proper approach to the resolution of such a ground in that seminal case (at 492-495).

3. [521]

   In short, I have applied the following propositions.

4. [522]

   I am determining a question of fact, not law.

5. [523]

   I am determining whether it was open on the evidence to the jury to return a verdict of guilty on count one.

6. [524]

   In determining that question, I am to bear in mind the advantage of the jury in seeing and hearing the evidence given in the witness box.

7. [525]

   A reasonable doubt experienced by me would be, in most cases, be a reasonable doubt that the jury ought also to have experienced.

8. [526]

   The exception to the above proposition is that, if I believe that the advantage of the jury in seeing and hearing the evidence given is capable of resolving that reasonable doubt experienced by me, then I may conclude that no miscarriage of justice occurred.

9. [527]

   Applying those propositions to the evidence in this appeal, in my opinion the determination of this ground is very finely balanced. My mind has wavered many times since judgment was reserved.

10. [528]

    The following factors argue in support of the proposition that it was open to the jury to return a verdict of guilty on count one.

11. [529]

    First, the constitutional role of the jury as the tribunal of fact with regard to serious crimes should be respected, and an appellate court should be slow to interfere with that role by substituting its own view of evidence for that of the members of the jury.

12. [530]

    Secondly, in any proceedings, a transcript of evidence fails to capture such aspects of the evidence of a witness as facial expression, gesticulation, tone of voice, volume of voice, speed of response, any pauses or hesitations, changes in mood, body language generally, and countless other factors. My own experience, both as counsel and judge, is that a transcript will often very largely fail to reflect the atmosphere that I had experienced to have prevailed in court. Evidence read subsequently in a transcript that seems acceptable will often be recalled to have seemed completely unacceptable at the time when it was given, and sometimes vice versa.

13. [531]

    Thirdly, those deficits in determining the quality of evidence founded upon a transcript are surely more pronounced in the case of an allegation of sexual assault in which starkly contrasting versions of events are given by different persons on oath.

14. [532]

    Fourthly, it is to be recalled that the complainant was still a child when the events in question took place. Her actions and reactions are not to be judged by the standards of an adult.

15. [533]

    Fifthly, great care needs to be taken not to impose stereotypical expectations about how a victim of sexual assault is “supposed” or “expected” to behave.

16. [534]

    Sixthly, merely because a person suffers from a psychological or psychiatric condition does not mean that that person is not to be believed when he or she complains of having been sexually assaulted.

17. [535]

    Seventhly, complete consistency in the recounting of the details of an alleged offence, especially one allegedly committed many months before the trial, is not to be expected; indeed, it would be suspicious.

18. [536]

    Eighthly, as my detailed summaries above demonstrate, the evidence on oath of the two appellants, although consisting of denials, may not have assisted their cases much, if at all.

19. [537]

    To expand on that statement, the position of Mr Khamis that he did not appreciate that Mr Hussain and the complainant were having sexual intercourse, and that he was merely on his phone at the time, strains credulity. The conclusion of his evidence-in-chief – when he would not give a clear answer to his own counsel about his belief that the complainant was consenting – hardly assisted. The transcript suggests that he sought to evade the real position about contact between himself and his friends and the motel. His evidence was unclear about who it was who actually proposed booking the room.

20. [538]

    The suggestion that the three of them went to the motel without some kind of intimate contact in mind strains credulity. So does the position that, even if the complainant had not been with them, the two young men may have booked into the motel together in any event. And so does the proposition that, when Mr Hussain left the room, Mr Khamis did not know whether he would return at all.

21. [539]

    His flippant answer about the sound of something being unwrapped possibly being a chocolate would hardly have endeared him to the jury.

22. [540]

    The suggestion that there was otherwise complete silence in the room borders on the bizarre. So does the suggestion that there may have been a whispered conversation preceding the sexual intercourse between the complainant and Mr Hussain that Mr Khamis did not hear. The explanation of the lyrics of the song playing in the car the following morning is founded upon coincidence.

23. [541]

    The evidence of Mr Hussain had similar negative attributes. His lack of facility in English was open to question. Even in chief, he seemed to prevaricate about whether or not he was familiar with the motel in question. The expectation that Ms Johnson would be present seemed ill-founded. His evidence that the complainant placed the hand of Mr Khamis on the hand of Mr Hussain when the latter was at the genitals of the complainant was not supported by the evidence of Mr Khamis.

24. [542]

    In light of the fact that Mr Hussain absented himself from the company of Mr Khamis and the complainant on two occasions, one may doubt the truthfulness of his explanations based upon a spicy pizza and a phone charger.

25. [543]

    The admitted lack of intimate response to his actions of any kind on the part of the complainant did not help the case for Mr Hussain. His evidence on oath that he had “not been paying attention” to the evidence of Mr Khamis in the joint trial about conversation about the condom would not have endeared Mr Hussain to the jury. Nor would the proposition that he never thought to ask the complainant why she brought the consensual sexual intercourse between the two of them to an abrupt end.

26. [544]

    Ninthly, the jury verdict could be understood as simply being a reflection of the proposition that, although the complainant was content to consent to sexual intercourse with Mr Khamis, but she was not content to consent to sexual intercourse with Mr Hussain. There is nothing inherently unlikely about that simple proposition.

27. [545]

    In my opinion, the significant countervailing features are as follows. I have stated them in generally ascending order of importance to my determination.

28. [546]

    First, except in unusual circumstances, circumspection about, or even rejection of, exculpatory evidence does not constitute inculpatory evidence.

29. [547]

    Secondly, the courteous and seemingly friendly behaviour of the complainant the following morning towards the two young men who, on the Crown case, had sexually assaulted her the evening before is, even making due allowance for the variability of human conduct, perhaps surprising.

30. [548]

    Thirdly, the distress of the complainant that developed thereafter may appear more consistent with the trauma of sexual assault than mere regret about consensual sexual activity. But the otherwise fragile psychological condition of the complainant generally needs to be borne in mind in assessing the probative value of her level of distress.

31. [549]

    Fourthly, one can infer from the divergences between the opening of the trial advocate and the evidence actually given by the complainant leading to the two verdicts by direction that, at the least, she had made more extensive allegations before the trial than she did in her evidence.

32. [550]

    Fifthly, the history given to the doctor was seemingly incomplete on the Crown case, even bearing in mind that it was not taken down verbatim.

33. [551]

    Sixthly, the two appellants were persons of good character.

34. [552]

    Seventhly, the complainant spoke to her male friend the following morning of having “done something wrong” and having “slept with two guys”, as opposed to having been sexually assaulted by one of them with the connivance of the other.

35. [553]

    Eighthly, the suicide note was in similar terms, in that it spoke of “mistakes” of the complainant, not things having been done wrongfully to her.

36. [554]

    Ninthly, the first explicit complaint of sexual assault was after the complainant had become grossly intoxicated, attempted to commit suicide, become hysterical, and been hospitalised.

37. [555]

    Tenthly, even giving due weight to the age and psychological problems of the complainant, the fact that she spent many hours in the motel room without attempting to depart, or complain to any person, and indeed having cut herself off from phone contact with her mother, is significant. And it is particularly significant with regard to the period after the sexual intercourse between the complainant and Mr Hussain came to an end, bearing in mind that on the Crown case she had not consented to it, and had made that lack of consent perfectly clear to both appellants.

38. [556]

    Eleventhly, the proposition that, whilst being sexually assaulted by Mr Hussain, the complainant said nothing whatsoever to him directly, but relied upon him hearing her expression of her lack of consent to Mr Khamis, is very odd. That is especially so bearing in mind that she did not give evidence of being afraid of Mr Hussain, and indeed her position was that she was content to push him to the chest more than once.

39. [557]

    Twelfthly and finally, the evidence of Ms Johnson that, the following morning, the complainant told her of having expressed her lack of consent the evening before merely by whispering to Mr Khamis is highly significant. As I have said, it was accepted at the hearing before us that that was the centrepiece of the communication of lack of consent to Mr Hussain. Ms Johnson was not cross-examined by the trial advocate pursuant to s 38 of the Evidence Act 1995 (NSW) in an attempt to undermine her evidence about the volume of the protestation. Not only is a suggestion of whispering strange indeed in the circumstances, it also raises the significant possibility that, if true, Mr Hussain simply did not hear the protestation.

40. [558]

    Seeking to weigh up all of those factors, and applying the test in M v the Queen, I experience a reasonable doubt about proof of the fact that, when he had sexual intercourse with the complainant, Mr Hussain knew that she was not consenting. And I should indicate that I have come to regard my own wavering assessment of the matter as inherently indicating that I experience a reasonable doubt.

41. [559]

    I have also ultimately come to that position, bearing in mind that the Crown relied upon the extended, objective form of the necessary knowledge. To be clear, I experience a reasonable doubt about whether Mr Hussain had “no reasonable grounds for believing that the other person consents to the sexual intercourse” (see s 61HA(3)(c) of the Crimes Act), based largely upon my concern about the absence of clear proof as to what actually happened in the motel room.

42. [560]

    I have separately considered whether that reasonable doubt of mine can be resolved against the appellants, in light of the unquestionable advantage that the jury enjoyed in assessing questions of credibility. But in light of the objective aspects of the evidence that I have set out above, I have come to the view that, even making due allowance for that significant advantage, my reasonable doubt is not resolved, and the verdict should not be permitted to stand against Mr Hussain.

43. [561]

    It follows, of course, that if no offence has been proven against Mr Hussain, then Mr Khamis, whose criminal liability was established by way of a joint criminal enterprise in the acts of Mr Hussain, must be acquitted as well.

Conclusion

1. [562]

   In short, in my opinion, ground one should not succeed, but ground two should be upheld with regard to both appellants.

Proposed orders

1. [563]

   I propose the following orders:

   1. (1)

      An extension of time is granted to Rafal Raad Khamis to prosecute his appeal.

   2. (2)

      Leave to appeal against conviction is granted to Rafal Raad Khamis.

   3. (3)

      The appeal against conviction of Rafal Raad Khamis is upheld.

   4. (4)

      The conviction of Rafal Raad Khamis is quashed, and a verdict of acquittal entered.

   5. (5)

      Leave to appeal is granted to Ather Hussain.

   6. (6)

      The appeal against conviction of Ather Hussain is upheld.

   7. (7)

      The conviction of Ather Hussain is quashed, and a verdict of acquittal entered.