Carr v R

1. [1]

   BALL JA: I agree with N Adams CJ at CL.

2. [2]

   N ADAMS CJ at CL: The applicant, Krystal May Carr, and two co-accused, Kaiya Blair and Kyeka Jane Hill, stood trial in the District Court before a jury and Judge Kumar between 4 March and 16 April 2024. The three accused were charged with aggravated sexual assault offences arising from an incident involving a fellow inmate at the Mid North Coast Correctional Centre on 11 August 2021. The Crown case was that, pursuant to a joint criminal enterprise (“JCE”), the co-accused physically assaulted and then sexually assaulted the complainant in order to obtain drugs which were concealed in the complainant’s vagina.

3. [3]

   On 16 April 2024, following a 27-day trial, the jury of eleven (by a majority of ten) returned a verdict of guilty for all three co-accused for count 1, an offence of aggravated sexual assault in company contrary to s 61JA(1) of the Crimes Act 1900 (NSW).

4. [4]

   On 25 June 2024, the applicant was sentenced to imprisonment for a term of 5 years and 9 months with a non-parole period of 3 years and 2 months, commencing on 3 October 2021. The applicant was released on parole on 2 December 2024. Her head sentence expires on 2 July 2027.

5. [5]

   By notice of appeal filed on 9 July 2025, the applicant appeals against her conviction. The following three grounds of appeal are relied on:

6. [6]

   All three grounds of appeal complain of deficiencies in the trial judge’s directions to the jury regarding the application of the principles of JCE to the elements of the s 61JA(1) offence. The applicant contends that the jury should have been directed that in order to convict the applicant, it was necessary to be satisfied beyond reasonable doubt that the applicant had agreed with the co-accused that they would inflict actual bodily harm (“ABH”) on the complainant and penetrate the complainant’s vagina, and that, at the time the requisite act was committed pursuant to the agreement by whichever accused, the applicant held the requisite mental state in respect of that act.

7. [7]

   As no objections were taken to these directions at trial, the question arises as to whether leave is required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Should the appeal be allowed, the applicant seeks that her conviction be quashed and a substituted verdict of assault occasioning actual bodily harm (“AOABH”) be entered pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).

The indictment

1. [8]

   On 4 March 2024, the applicant was arraigned alongside her two co-accused, Ms Blair and Ms Hill. The indictment alleged four alternative counts arising out of the one incident as follows:

2. [9]

   The applicant and Ms Blair pleaded guilty to count 4 (AOABH in company) before the jury panel. All three accused otherwise pleaded not guilty to counts 1, 2 and 3. The pleas of guilty were not accepted in full satisfaction of the indictment and the trial proceeded against all three accused. I shall return to consider the significance of the applicant’s plea of guilty to AOABH as it may explain the approach taken by the applicant’s trial counsel at trial as to the necessary directions regarding the elements of the offence.

3. [10]

   Three other inmates, AA, BB and Deborah Hardy, were also involved in the assault on the complainant. AA pleaded guilty to sexual assault in company (the same offence as count 2 on the trial indictment). BB and Ms Hardy each pleaded guilty to offences of AOABH in company and concealing a serious indictable offence on the basis that they were not in the room during the sexual assault. All three inmates were criminally involved witnesses at trial. AA and BB received sentence discounts for their cooperation. The identities of AA and BB are subject to suppression and non-publication orders.

4. [11]

   The applicant does not contend that her conviction was unreasonable; the sole focus of the appeal is the adequacy of the directions in the summing up. Despite this, it is necessary to consider the Crown case at trial and how the applicant put her case in order to understand the complaints now made by the applicant. Accordingly, I propose to summarise the Crown case and the evidence at trial before turning to the trial judge’s directions that are the subject of complaint on appeal.

Overview of the Crown case

1. [12]

   In August 2021, the applicant, the complainant and the co-accused were all inmates at the Mid North Coast Correctional Centre (“MNCCC”), which is otherwise known as “Kempsey”. They were all accommodated within Sector 2 of MNCCC. The complainant had a “large stash” of prohibited drugs which she was using and sharing with other inmates. She concealed the drugs in her vagina inside of a plastic golden egg and in a separate package. On the Crown case, it was common knowledge in the MNCCC that the complainant had drugs secreted on her person.

2. [13]

   On 11 August 2021, at around 1:32pm, the Crown alleged that the applicant, Ms Blair, Ms Hill, AA, BB and Ms Hardy met in the yard and decided to take the complainant’s drugs. Shortly after, around 2pm, the applicant lured the complainant to the applicant’s cell under false pretences. The other five inmates followed. Once the complainant was in the cell, she was physically assaulted by a number of the inmates, including being kicked to the face by Ms Hardy. The applicant and the other inmates demanded that the complainant hand over the drugs. When the complainant refused, the applicant dragged and pinned her to a bed, face down. Ms Hardy and BB left the room. After a request was made for gloves, AA brought a box of gloves to the room.

3. [14]

   The complainant’s clothes were removed from the waist down and her legs were spread apart by force. Ms Blair put on a glove, inserted her fingers into the complainant’s vagina and retrieved the plastic egg and separate package containing drugs. At the time this was occurring, the applicant, Ms Hill and AA remained present and restraining the complainant.

4. [15]

   In its opening and closing addresses, the Crown put its case on the basis of JCE. It was alleged that the accused went into the cell with the complainant with the “singular purpose” of taking the drugs from the complainant “by any means”. This involved, on the Crown case, “escalating conduct”. The agreement was initially to use “physical violence, intimidation and demands” to get the complainant to take the drugs out of her vagina and give them to the other inmates. When the complainant resisted those demands, the Crown case was that the enterprise “dramatically evolved” when the request for gloves was made to include an agreement to sexually assault the complainant in order to obtain the drugs.

5. [16]

   When discussing the alternative counts on the indictment in the Crown’s opening, the jury was told that they had to consider “cascading charges involving different levels of criminality”.

The evidence at trial

1. [17]

   The complainant’s interview with police on 11 August 2021 was played to the jury as part of her evidence-in-chief. She also gave evidence at trial.

2. [18]

   The complainant was arrested on drug supply charges and entered custody on 29 April 2021. On 18 July 2021, she was transferred to the MNCCC after being housed at Dillwynia Women’s Correctional Centre and Silverwater Women’s Correctional Centre.

3. [19]

   Prior to entering custody in April 2021, the complainant secreted in her vagina a plastic egg containing a quantity of methamphetamine and a number of buprenorphine strips and a separate package containing buprenorphine strips. The complainant estimated the total quantity of the drugs to be one to two ounces of methamphetamine and about 150 strips of buprenorphine. She gave evidence that the drugs were primarily for her own use. During her incarceration at Silverwater, the complainant gave some of the drugs to other inmates and she sold some of the buprenorphine strips at Dillwynia. While she was at the MNCCC, the complainant said that she shared the drugs with other inmates, including Krystal England, Brydee Henare and Ms Hardy. She claimed that she did not sell the drugs while at the MNCCC.

4. [20]

   On 10 August 2021, Ms England and Ms Hardy (who were in a romantic relationship) asked the complainant for some methamphetamine. She told them she did not have any left. On the same day, Ms Hill took the complainant’s Cartier ring and returned it when the complainant gave her buprenorphine strips. As at 11 August, the complainant no longer had any methamphetamine left but had about 43.5 strips of buprenorphine secreted in her vagina (40 in the plastic egg and 3.5 packaged separately).

5. [21]

   On 11 August, the complainant was approached by Ms Hardy and Ms Hill who told her that the applicant wanted to speak to her to get an “account number”. The applicant then came and spoke to the complainant, inviting her to the applicant’s cell for a soft drink. The complainant walked with the applicant to the building in which the applicant resided.

6. [22]

   As they approached the applicant’s room, the complainant realised that the applicant had dropped back behind her. The complainant heard footsteps and turned around. She saw the applicant, Ms Blair, Ms Hill, AA, BB and Ms Hardy in the corridor. The complainant realised at this stage that she had been lured in.

7. [23]

   The complainant was pushed or kicked into the applicant’s cell and found herself on the floor. She did not know who knocked her to the floor as the assailants were behind her. At this stage, all six inmates and the complainant were in the cell. The cell door was closed and locked. Ms Blair and Ms Hardy started kicking the complainant in the face while she was on the ground and Ms Blair stomped on her face. While this was occurring, the applicant was saying, “Why don’t you help the girls out?”. AA said, “The girls are hanging out”, which the complainant understood to refer to withdrawals. The complainant was then told “to fucking take the drugs out”. When she refused to do so, denying that she had any drugs, one of the assailants said, “You don’t want to do it? All right”. At trial, the complainant gave evidence that it was the applicant that said this.

8. [24]

   The applicant pulled the complainant by “the scruff of [her] neck” onto a bed, flipped her over and put her face-down on the bed. While the applicant was holding the complainant down, the applicant and the other assailants kept telling the complainant “to fucking take the drugs out” and she kept refusing. When the complainant physically resisted, more weight was placed on her shoulders, neck and head.

9. [25]

   The assailants removed the complainant’s pants and underwear and kicked off her shoes, so that she was naked from the waist down. After the complainant told the assailants that she only had 3.5 strips of “bupe”, one of them said, “That’s fucking bullshit, because we used with you yesterday”. One of the other assailants said, “You don’t want to fucking take it out? Someone go get gloves”. In her interview with police, the complainant said that she did not know who said this but that it was “Maybe Crystal [sic]”. She said it was not Ms Hardy or Ms Hill because she would have recognised their voices. At trial, the complainant said that it was the applicant that said this. At this time, the applicant had the complainant’s head and shoulders pinned down on the mattress.

10. [26]

    After there was a request for gloves, the complainant heard the doors of the cell open and close. The complainant could not see who left the room as she was still being held face down.

11. [27]

    The complainant was screaming and the assailants told her to stop. Ms Blair said, “I’ll fucking stab you if you keep screaming”. Both the applicant and Ms Blair continued to tell the complainant to take the drugs out.

12. [28]

    The complainant’s legs were pulled apart while she was still being held face down. She said, “Stop. No”, but “they kept telling me to take it out”. The complainant said, “someone placed their hand inside of me and removed both the smaller package and the larger package … they digitally, digitally penetrated my vagina”. As this was occurring, the applicant kept telling the complainant to “push”.

13. [29]

    The complainant did not know who inserted their fingers into her vagina because she was face down on the bed. She stated that it was not the applicant because she had her pinned down during the act of digital penetration, holding her head and shoulders. The applicant did not take her hands off the complainant throughout the course of the digital intercourse

14. [30]

    After the drugs were removed, the complainant’s legs were released and the applicant stopped pushing her shoulders and head down. AA picked up the complainant’s underwear and shorts and the applicant helped her get dressed. The complainant was told, “Don’t fucking tell the screws”. The complainant had bruising and swelling to her face. The applicant told the complainant that she needed to get “fixed up” before she left and took her to another cell belonging to Carly Smith to put make-up on. Ms Smith gave evidence in the trial that she used foundation to cover a mark over the complainant’s left eye. The applicant told the complainant, “Don’t fucking tell anyone”.

15. [31]

    The complainant returned to her building and told Brydee Henare, Melanie Brown and Taya Kakahee about what had happened “straight away”. The complainant said that while she was in Ms Henare’s cell, she could see the women who had been involved in the assault “high-fiving each other” outside.

16. [32]

    At 2:33pm, the complainant called her partner and told him that, “I’ve been raped and I have to go to the screws”. At afternoon muster, the complainant stepped forward and stated in front of the other inmates that she had been raped by six inmates and wished to press charges. The complainant then participated in a recorded interview with the officer-in-charge, Detective Senior Constable Steven Klein, at 4:45pm on 11 August 2021.

17. [33]

    In cross-examination, the applicant’s counsel put to the complainant a version of events that reflected the applicant’s case at trial. It was put to the complainant that she had removed the drugs herself in the course of a drug deal to the applicant. It was also suggested to the complainant that the applicant had opportunistically taken the drugs from her once other women arrived in the cell and assaulted the complainant over a dispute involving the complainant’s Cartier ring. The complainant rejected this version of events. Specifically, the complainant rejected the following propositions:

    1. (1)

       The complainant went to the applicant’s cell for the purposes of a drug deal.

    2. (2)

       The applicant and the complainant were haggling over the price. They had agreed to the purchase of three strips for $1,000, but the applicant wanted five as she was selling strips to other inmates for $200 per strip.

    3. (3)

       The complainant had removed the egg from her vagina herself in order to get the additional strips.

    4. (4)

       A number of other inmates then arrived at the cell door and were angry with the complainant over a dispute about the complainant’s Cartier ring.

    5. (5)

       The applicant took the opportunity to swipe the egg and other drugs from the table and put them into her underpants.

    6. (6)

       After the applicant opened the door to the other girls, the complainant was assaulted by the other inmates. The applicant said something like, “Girls, it’s all right. I’ve got it”. All the women then left.

18. [34]

    It was suggested to the complainant in cross-examination that she had three motives to lie about being sexually assaulted as follows:

    1. (1)

       To explain to the person to whom she owed money for the drugs why she could not meet that debt. The complainant agreed that after she was released from custody, she had to pay off a debt from having lost drugs in custody but denied that she made up the assault to get out of the debt;

    2. (2)

       In order to get moved from MNCCC to Clarence Correctional Centre; and

    3. (3)

       To persuade her sentencing judge to give her a lighter sentence. The complainant accepted that she did make submissions to the sentencing judge based on the assault.

AA

1. [35]

   AA gave evidence for the Crown. She received a 50% discount on sentence for her guilty plea and assistance in giving evidence in the trial.

2. [36]

   AA described a conversation on 11 August 2021 in which the applicant and BB were “talking about [the complainant] having drugs and wanting to take drugs off her”. At that stage, there was no discussion as to how the drugs would be taken. The applicant told AA that she wanted her to stand by the door and “stand guard”. Shortly after this conversation, there was a meeting in the yard with all six inmates involved at 1:32pm during which a discussion took place about “taking the drugs from [the complainant] and about getting her”. Again, there was no discussion about how that would be done.

3. [37]

   AA said that she later walked towards the applicant’s room to look for BB and heard voices. The applicant, Ms Blair and Ms Hill were yelling for the complainant to hand over her drugs, and the complainant was starting to sob and saying that she did not have anything. After AA knocked on the door and entered the room, she saw that Ms Hardy and BB were also inside and she pushed them out of the room and closed the door. She remained in the room with the applicant, Ms Blair, Ms Hill and the complainant. She did not see the complainant being hit but she looked like she had been when AA entered the room.

4. [38]

   AA testified that the applicant, Ms Blair and Ms Hill “were still yelling for her to hand over the drugs”. The applicant was “then telling the girls to take them off her or to hit and kick her”. The complainant then either fell back or was pushed or kicked backward onto the bed. AA stated that “they then started to slap her around and struggle with her and demand that she give them [the drugs]”. The complainant was kicking and screaming. The applicant “pinned [the complainant] down by the top half on the bed”. AA’s testimony was that the complainant was lying on her back. The applicant had her pinned down by lying on her top half, with one foot on the ground and one knee over the top of her.

5. [39]

   AA said that the applicant “was asking for someone to get [the complainant’s] shorts off” and the complainant’s shorts were taken off. The complainant was kicking and struggling while the others were trying to restrain her and remove her clothes. AA said that the applicant then asked for gloves. In cross-examination, however, AA accepted that she had said in her statement that she was “sure” it was Ms Hill who said to get gloves, as the applicant already had gloves, and said that she could not be certain as to who said what. AA either obtained a box of gloves just outside the room or someone handed her the gloves. She then walked to the common area before returning to the cell. When she returned, the applicant, Ms Blair and Ms Hill were still holding the complainant down. AA assisted them by holding one of the complainant’s legs. Ms Hill was trying to separate the complainant’s legs and the applicant was telling the complainant to hand over the drugs and to squeeze “the fucking drugs out”. The applicant continued to pin the complainant down.

6. [40]

   AA observed Ms Blair put a glove on her hand and “go down to [the complainant’s] vagina area and shoved her hands into [the complainant’s vagina] and was in there for, like, it seemed about 20 seconds or so and was trying to reach around to find whatever was inside”. Ms Blair pulled an object out of the complainant’s vagina and handed it to the applicant, who put it down the front of her shorts. The applicant then told the complainant to fix herself up and to put her underwear and shorts back on. AA helped the complainant pick her shorts up. The applicant asked AA to get rid of the gloves, but AA refused.

7. [41]

   AA later met the applicant, Ms Blair and Ms Hill. The applicant took a package out of her shorts, which included a golden egg. The applicant distributed drugs among herself, Ms Blair, Ms Hill and AA.

8. [42]

   In cross-examination of AA, the applicant’s trial counsel put to her that there was no conversation about taking the drugs from the complainant as follows:

9. [43]

   The applicant’s case was put to AA in cross-examination (that there was a drug deal and an argument over a Cartier ring). AA denied that version of events as follows:

BB

1. [44]

   BB gave evidence for the Crown. She received a 50% discount on sentence for her guilty plea and assistance in giving evidence in the trial.

2. [45]

   BB gave evidence that on 11 August 2021, she and Ms Hardy were asked by the applicant, Ms Blair, Ms Hill and AA “to keep an eye out so they can go and take the drugs off [the complainant]” and “bash her”. She said that the applicant, Ms Hill, Ms Blair and AA “wanted the drugs that [the complainant] had inside of her vagina” and that the complainant had told them about the drugs two days before. The applicant said, “We got to get her right now. It’s got to happen and it [sic] we go to take her down. We got to get her and take it off her”, referring to the golden egg and the drugs contained within it.. BB understood that the plan was to “rough [the complainant] up” to get the drugs off her.

3. [46]

   BB said that the applicant walked over to the complainant and lured her to the applicant’s building by offering her a drink. She saw Ms Blair, Ms Hill, AA and Ms Hardy in the corridor and saw them “shove” or “push” the complainant into the room. She said that she was also shoved into the room. The applicant threw the complainant to the ground and dragged her further into the cell. BB then saw Ms Hill kick the complainant in the ribs and Ms Blair kick her in the head. AA then pushed BB out of the door and told her to “get out”. While she was out of the room, she heard the words, “Get the gloves”. She also heard the complainant screaming and saying “no”. She saw Ms Hardy outside the room. BB said that she later saw the complainant walk out with bruises and “she had a bit of make-up on to cover it”.

4. [47]

   BB was later asked to “keep an eye out” next to the window of a room. The applicant, Ms Blair, Ms Hill and AA were inside the room. BB saw the applicant open up a golden egg and retrieve drugs from it, splitting the drugs up four-ways between them. The applicant gave BB three buprenorphine strips.

5. [48]

   When the six participants in the assault were moved to segregation, BB was housed in a cell with the applicant. The applicant told BB that, after Ms Blair had removed the egg from the complainant, the applicant had put it down her underwear. The applicant was concerned that the complainant’s DNA would be found in her underwear. The applicant told BB that she had put the glove and wrappers which had previously contained the drugs into a bin used to dispose of sanitary pads.

6. [49]

   In cross-examination of BB, the applicant’s trial counsel put to her that she was not present during any conversation in which the applicant discussed taking drugs off the complainant. Her responses were as follows:

7. [50]

   BB also denied the applicant’s case of a drug deal and an argument over a Cartier ring:

Deborah Hardy

1. [51]

   Unlike AA and BB, Ms Hardy did not make a statement to police and did not receive a sentencing benefit for giving evidence at trial.

2. [52]

   Ms Hardy confirmed that she met with the applicant, Ms Blair, Ms Hill, AA and BB on 11 August 2021. She recalled “the girls saying they wanted stuff … drugs”. She understood that the plan was to “put the standover, like a heavy word” on the complainant and “intimidate” her to get the drugs.

3. [53]

   When Ms Hardy went to the room where the assault occurred with Ms Hill, the complainant was already there and being hit and kicked by the others. The assailants were saying, “Just hand the drugs over”. Ms Hardy said she “joined in” and kicked the complainant once while the complainant was on the ground. The others present in the room were the applicant, Ms Blair, Ms Hill, AA and BB. Ms Hardy heard the words, “Fuck this. Get the gloves”. She decided to leave and left the room with BB. Ms Hardy explained that the words “get the gloves” meant “taking things outside of somebody”.

4. [54]

   In cross-examination by the applicant’s trial counsel, Ms Hardy accepted that there may have initially been a drug deal:

5. [55]

   However, Ms Hardy rejected the following propositions:

6. [56]

   On 11 August 2025, the complainant was taken to Kempsey District Hospital where she saw Dr Omer Ali Mohammed and a sexual assault counsellor. She did not undergo an examination of her genitalia but provided a self-administered swab. The complainant testified that she told Dr Mohammed and the counsellor that she had been sexually assaulted.

7. [57]

   Dr Mohammed gave evidence at trial confirming that he did not conduct an internal or external genital examination. His notes recorded that the complainant reported an “assault in the genital region” but did not refer to penetration. Dr Mohammed confirmed that the complainant had swelling and bruising to both eyes.

8. [58]

   A DNA tape lift was taken from inside the underwear worn by the applicant at the time of the assault. This was found to contain a DNA mixture originating from at least two individuals. The applicant could not be excluded as the major contributor to the mixture and the complainant could not be excluded as the minor contributor.

The applicant’s case at trial

1. [59]

   The applicant did not call evidence at trial. She put her case in cross-examination of the complainant, AA, BB and Ms Hardy.

2. [60]

   Along with the other defence counsel, counsel for the applicant cross-examined AA and BB about their motive to lie and minimise their involvement in the assault due to the sentencing discounts they received. An issue of contamination relating to all three criminally involved witnesses was also raised with evidence that Ms Hardy had read out her charge facts sheet out loud to the co-accused, and that various other discussions between the co-accused about their charges and police facts had taken place while in segregation. The applicant also relied on the evidence of correctional officers that they came to the door of the unit and did not hear any yelling or screaming, which was said to be inconsistent with the complainant’s account.

3. [61]

   Ms Hill’s case was put to the complainant in cross-examination; that there was an argument over the incident involving Ms Hill taking the complainant’s Cartier ring the previous day (see above at [20]). She replied as follows:

4. [62]

   As put in trial counsel for Ms Hill’s closing address, “Ms Hill was upset about that because of this issue to do with the Cartier ring, not because of anything to do with the drugs”.

5. [63]

   Counsel for Ms Blair put to the complainant that she did not know who Ms Blair was until after the incident on 11 August 2025 and had to have her friend identify her. She also put to the complainant, AA and BB that Ms Blair never kicked the complainant during the altercation and that slapping was the extent of the physical assault.

Relevance of guilty pleas to count 4

1. [64]

   In the early days of the trial, prior to the parties’ opening addresses, her Honour raised the nature of the pleas of guilty to count 4 (AOABH) and whether an anti-tendency direction was required. After confirming that count 4 was an alternative count, the Crown prosecutor said the following as to the significance of the guilty pleas:

2. [65]

   Nothing was said by any defence counsel, including the applicant’s counsel, to challenge this assumption on behalf of the Crown.

3. [66]

   In his opening address, counsel for the applicant said the following about the plea to count 4:

4. [67]

   In his closing address, counsel for the applicant again put the significance of the guilty plea to the jury in this way:

5. [68]

   It is also relevant to this appeal that counsel for the applicant variously expressed to the jury in his closing address that the allegation of sexual assault was the “key issue” that they would have to address.

6. [69]

   Similarly, counsel for Ms Blair in her opening address dealt with the plea of guilty to count 4 as follows:

7. [70]

   In her closing address, counsel for Ms Blair once again stated that that by entering the plea of guilty to count 4, Ms Blair “acknowledges that she was part of that offence”.

8. [71]

   In his closing address, the Crown prosecutor described the guilty pleas in this way:

9. [72]

   In his closing address, counsel for Ms Hill, who was the only accused for which the issue of guilt for count 4 remained live, relevantly queried the specifics of the allegations underlying count 4 and the differences between Ms Hill’s and AA’s respective roles in the assault on the Crown case:

10. [73]

    To the extent that that there is any doubt as to the basis of the applicant’s plea of guilty on count 4, it should be noted that when sentencing the applicant on 25 June 2024 Judge Kumar accepted the applicant’s submission that her plea of guilty to count 4 “assisted the Crown as the Crown did not have to prove this as a circumstance of aggravation in relation to count 1”. Her Honour went on the state the following under the heading “Remorse”:

The directions

1. [74]

   The trial judge provided counsel with draft directions regarding the elements of the offences on 4 April 2024 (MFI 43). The first two drafts of the written elements document sent to the parties (MFI 33 and MFI 35) did not contain a detailed description of the fifth element of count 1 (the reckless infliction of ABH). Trial counsel for the applicant raised this omission with the trial judge on 26 March 2024 and requested that element 5 be included. The next draft (MFI 43) contained a description of this element.

2. [75]

   On 4 April 2024, a day before the summing up began, the trial judge drew counsel’s attention to the aspects of her draft summing up (MFI 44) that dealt with JCE; that direction referred to sexual assault as the subject of the agreement and did not include a reference to an agreement to inflict ABH. Her Honour proposed that she would insert that JCE direction into the elements document. No issue was raised by counsel for the applicant with that proposed course.

3. [76]

   Referring to the summary of the case for each accused, the trial judge drew counsel’s attention to a passage in the draft elements document (MFI 43) which stated “that each accused denies that the sexual assault occurred”. Her Honour said the following:

4. [77]

   The trial judge then discussed element 5 (reckless infliction of ABH) in the written directions (MFI 43) with trial counsel. The following exchange took place:

5. [78]

   In discussion with counsel, the trial judge said the following about the pleas of guilty to count 4:

6. [79]

   The trial judge commenced summing up on 5 April 2025. The trial judge also provided written directions to the jury (MFI 52).

7. [80]

   At the outset of the trial judge’s summing up, her Honour made reference to the relevant pleas of the accused:

8. [81]

   Her Honour then said the following about the nature of the joint trial:

9. [82]

   Her Honour summarised the Crown case on JCE as follows:

10. [83]

    Her Honour then said:

11. [84]

    On JCE, her Honour directed the following:

12. [85]

    This direction was repeated in the written directions provided to the jury (MFI 52).

13. [86]

    Her Honour then identified the five elements of count 1:

14. [87]

    Element 5 (the reckless infliction of ABH) is the subject of grounds 1 and 2 on appeal. On this element, the trial judge directed the following:

15. [88]

    Her Honour then repeated to the jury that, “You are to consider the five elements of count 1 in respect of each accused separately”.

16. [89]

    Her Honour then directed the jury as to the principles of JCE:

17. [90]

    No objections were taken to any of these directions by trial counsel for the applicant.

Jury deliberations

1. [91]

   The jury retired to consider its verdicts at 3:44pm on Friday, 5 April. When they returned to deliberations on Tuesday, 9 April (after losing a juror and becoming a jury of 11), the jury sent a note (MFI 59) which read:

2. [92]

   In response to this note, the trial judge re-directed the jury as follows:

3. [93]

   Her Honour confirmed that “[i]f the accuser, or the complainant, takes out the object herself, it is not sexual intercourse”.

4. [94]

   Shortly thereafter, the jury wrote another note (MFI 60) which reads:

5. [95]

   Following consultation with counsel, the trial judge directed the jury as follows:

6. [96]

   On 10 April, the jury sent a note stating that they could not reach a unanimous verdict on counts 1, 2 and 3 but that they had reached a unanimous decision on count 4. Concerns were raised by the parties that this verdict was not possible as count 4 was an alternative count. The jury were given a Black direction [1] and reminded not to consider count 4 for Ms Hill unless they had found her not guilty of counts 1, 2 and 3.

7. [97]

   On 15 April, the jury provided a note confirming that they were still unable to reach a unanimous decision. The trial judge gave a majority verdict direction.

8. [98]

   At 2.48pm on 16 April, the jury returned a majority verdict (10-1) of guilty to count 1 against the three co-accused.

Section 61JA/Joint criminal enterprise elements

1. [99]

   The applicant was convicted of an offence contrary to s 61JA(1) of the Crimes Act. All three grounds of appeal contend for error in the jury directions regarding the elements of the s 61JA(1) offence in the context of the JCE directions. Adopting the elements directions provided to the jury at the applicant’s trial, grounds 1 and 2 contend for error in relation to the directions on element 5 (the reckless infliction of ABH) and ground 3 contends for error in relation to the directions for element 1 (sexual intercourse).

2. [100]

   Section 61JA(1) of the Crimes Act, relevantly provides:

3. [101]

   “Element 1” is to be found in s 61JA(1)(a) (sexual intercourse). “Element 5” is to be found in subsection (c)(i), namely, that the agreement was that “at the time of, or immediately before or after, the commission of the offence”, actual bodily harm would be intentionally or recklessly inflicted on the complainant. Grounds 1 and 2 are directed at this element.

4. [102]

   The Crown case was that the agreement brought was one of straightforward JCE which escalated. The relevant principles have been discussed in numerous decisions of the High Court including: Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3, McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37, Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 (“Osland”), Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 (“Gillard”), Clayton v The Queen [2006] HCA 58; 168 A Crim R 174, Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 (“Miller”) and Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 (“Mitchell”).

5. [103]

   I recently summarised the principles derived from these High Court decisions and the differences between straightforward and extended JCE in R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824 at [39] and [40] as follows:

6. [104]

   The doctrine of JCE makes parties to an agreement equally liable for the acts that constitute the actus reus of the crime which is the subject of the agreement notwithstanding that an accused does not themself physically commit any of those acts, provided that they participate in some way in the commission of the crime: Osland at [73]. The Crown must establish that at the time the acts constituting the actus reus were committed, the accused had the requisite mens rea. In Gillard, Hayne J described how the predicate agreement was to be identified. He stated at [124]:

7. [105]

   Gordon, Edelman and Steward JJ in Mitchell at [54] recently reaffirmed, citing Gillard, that to establish that each party to an agreement to commit a crime is guilty of the agreed crime and any crime “within the scope of the agreement”, it is “essential to identify what acts and omissions the parties agreed upon”.

8. [106]

   In Anda v R [2022] NSWCCA 29, McCallum J (with whom Rothman and Ierace JJ agreed) discussed the “distinct doctrines” of JCE and in company circumstances of aggravation (at [43]). At [44], her Honour observed:

Grounds 1 and 2

1. [107]

   Adopting the approach taken by the applicant, I propose to consider grounds 1 and 2 together as they both concern the criminal enterprise necessary to prove the element of reckless infliction of ABH for count 1.

2. [108]

   As to ground 1, the applicant submitted that element 5, or the infliction of ABH, is not a mere aggravating circumstance in which the sexual assault occurs, but the requisite actus reus of the offence. Accordingly, this was an act to which the agreement must have attached for JCE liability to be established. While this was described as “Element 5” in the directions to the jury, the applicant submitted that the jury were not directed at all as to the need to be satisfied of any agreement to inflict ABH on the complainant, or of an agreement to the act that in fact inflicted ABH. Instead, it was submitted that “[t]he jury were only ever directed in respect of an agreement to sexually assault the Complainant, simpliciter”.

3. [109]

   As to ground 2, the applicant submitted that the trial judge did not direct as to the requisite mental state of recklessness, being that the Crown had to establish that the applicant intended or was reckless as to whether the acts pursuant to the agreement would inflict ABH. Ultimately, it was submitted that the trial judge’s directions left the jury understanding that recklessness in element 5 was referable to the state of mind of the person who physically committed the assault, being Ms Hardy or another co-accused, rather than inquiring into the applicant’s own mental state.

4. [110]

   Senior counsel for the applicant distinguished the trial judge’s directions on element 5, which were said to refer to “the accused” in the singular, with her Honour’s directions on element 3 (knowledge of lack of consent). In this direction, her Honour referred to “each of the accused’s’ state of mind” and “the individual accuseds”.

5. [111]

   As for the basis of the applicant’s plea of guilty to count 4, it was submitted that it was referable to her case as it was put to witnesses in cross-examination; namely, that she was involved in a drug deal with the complainant and there was no predicate agreement to assault her. Further, reliance was placed on the fact that subsection (c) of s 61JA(1) is not relevantly identical to s 59, which requires assault occasioning ABH in company as opposed to the assault being prior to the sexual assault as part of, in this case, a JCE. Ultimately, it was submitted that the Court must look to what the facts are that support the plea, as opposed to the plea itself. It was submitted that it was made clear through cross-examination of the Crown witnesses that the applicant did not accept that an assault occurred in the context of a JCE to sexually assault the complainant to obtain her drugs.

6. [112]

   Senior counsel relied upon the fact that Ms Hill had pleaded not guilty to count 4, such that it could not be said that element 5 was not at issue at all in the trial. The applicant also noted that her trial counsel specifically requested that a direction on element 5 be included (see above at [74]), which was submitted to demonstrate that the parties considered it remained in issue at trial.

7. [113]

   As to ground 1, the Crown submitted that the trial judge was not required to direct the jury that the Crown had to prove that the applicant agreed to inflict ABH on the complainant. Instead, it was submitted that the Crown could prove the applicant’s liability with respect to element 5 of count 1 on the basis that infliction of ABH was within the scope of the agreement, in the sense described in Miller. This was appropriately reflected by the trial judge’s directions that the Crown case was that the co-accused acted with a “singular purpose” to take drugs from the complainant “by any means”. In any event, the jury were directed that the Crown had to prove that the crime the subject of the agreement was, in fact, committed (which included all elements of count 1).

8. [114]

   The Crown submitted that the directions appropriately focused on the real issues as defined by the parties at trial, and reflected the fact that the applicant pleaded guilty to count 4, which meant that proof of element 5 of count 1 was ultimately not disputed at trial. Instead, what was in dispute was whether any sexual assault took place, which the applicant denied. The Crown emphasised that the complainant was charged on the indictment with a series of alternative offences in a descending order of gravity and that “[t]hey all proceed on the basis of the same factual scenario”. The Crown further submitted that there was no evidentiary basis for the applicant’s criminal liability with respect to the infliction of ABH other than that alleged by the Crown, given that the witnesses had rejected the applicant’s case of a dispute over a Cartier ring.

9. [115]

   As to ground 2, the Crown submitted that the directions read in the context of the summing up as a whole made it clear that the element of recklessness as to the infliction of ABH was concerned with the applicant’s state of mind, and not the state of mind of any co-accused. First, the Crown noted that the jury were directed that element 5 had to be proved for each accused on a number of occasions. Secondly, it was submitted that the jury would not have understood “accused” in the impugned direction to refer to Ms Hardy, who was a witness and not an accused at trial.

10. [116]

    In respect to both grounds 1 and 2, the Crown relied on the trial judge’s discussions of draft directions with counsel and the fact that counsel took no issue with them. This was said to indicate that the elements as framed caused no injustice to the applicant in the atmosphere of the trial and accorded with the real issues at trial.

Consideration – Grounds 1 and 2

1. [117]

   The applicant relies on the “second limb” of s 6(1) of the Criminal Appeal Act and submits that the verdict should be set aside on the ground of the “wrong decision of any question of law”. The High Court in MDP v The King [2025] HCA 24; 99 ALJR 969 (“MDP”) discussed second limb error in the context of a misdirection on a matter of law by a trial judge. At [102], Gleeson, Jagot and Beech-Jones JJ held the following (Gageler CJ, Gordon, Steward and Edelman JJ agreeing):

2. [118]

   As Gordon, Steward and Gleeson JJ had earlier observed in Huxley v The Queen [2023] HCA 40; 98 ALJR 62 at [43] (“Huxley”), a determination of whether a direction involves a misdirection on the law may depend upon “contextual matters, including the issues at the trial, the evidence, closing addresses by counsel and the whole of the trial judge’s summing up”. The ultimate question is whether the trial judge’s direction to the jury, taken as a whole, deflected the jury from its fundamental task of deciding whether the prosecution proved the elements of the offence beyond reasonable doubt: Huxley at [41]; Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46].

3. [119]

   Once an applicant shows there was a misdirection on a matter of law, the applicant must also establish that the misdirection “involved an error that was either fundamental to the trial, or, if not fundamental, material in the relevant sense” (MDP at [104]). In Brawn v The King [2025] HCA 20; 99 ALJR 872, which was heard with MDP, the High Court held that for errors or irregularities to constitute a miscarriage of justice, they must be material in that they “could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred” (at [10]). Where this is established, the appeal must be allowed unless the prosecution establishes that no “substantial miscarriage of justice” occurred, applying the proviso in s 6(1) (MDP at [108]).

4. [120]

   The relevant principles were recently summarised by Kirk JA (with whom Sweeney and Coleman JJ agreed) in Koch v R [2025] NSWCCA 219 at [45]:

5. [121]

   Justice Kirk went on to observe (at [46]) that determining whether there has been such a misdirection requires a “holistic assessment of the directions rather than scrutinising a specific phrase or sentence in an acontextual fashion”. His Honour referred to his earlier summary of the relevant principles in Cliff v R [2023] NSWCCA 15 at [11]-[12] (with which Harrison J (as his Honour then was) and Wright J agreed):

6. [122]

   In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (“Kalbasi”), Edelman J at [149] stated that “it will rarely, if ever, be a miscarriage of justice for a trial judge not to direct a jury about an element of an offence that is not in dispute in the trial”. Kiefel CJ, Bell, Keane and Gordon JJ similarly observed (at [58]):

7. [123]

   Similarly, in Agnew v R [2024] NSWCCA 5 (“Agnew”), this Court dismissed an appeal against conviction in which the applicant had contended that the trial judge had erred in his summing up by inadequately directing on the elements of consent and the applicant’s knowledge of lack of consent. During that trial, it had been accepted on behalf of the applicant that the defence case was that there was no sexual offending at all and that if the complainant’s evidence was accepted, all elements of the offence would be satisfied. In dismissing the appeal, Price J, with whom Lonergan and Dhanji JJ agreed, noted that, as here, the applicant’s trial counsel took no objection to any of the matters subsequently raised on the appeal, which was “cogent evidence” that in the atmosphere of the trial she “saw no injustice or error in what was done” (at [42]. His Honour went on to observe at [45]:

8. [124]

   Turning to apply these principles to the present appeal, a key area of dispute at the hearing of this appeal, relevant to both grounds 1 and 2, was whether the applicant’s plea of guilty to count 4 removed the element of reckless infliction of ABH as a real issue at the trial. The applicant’s plea of guilty to count 4 clearly reflected an acceptance that she had inflicted ABH on the complainant in company, but the parties joined issue in this Court as to the factual basis for that plea. The Crown contended that it effectively was a plea to what the Crown had to prove under element 5, whereas on behalf of the applicant it was submitted that the plea of guilty was on the factual basis put to the Crown witnesses by the applicant’s trial counsel in cross-examination (which was rejected).

9. [125]

   I have already set out the relevant portions of the transcript on this issue above at [64]-[73]. The applicant’s contention regarding the factual basis of the plea in this Court is inconsistent with the record below. The applicant’s trial counsel did not place on the record the basis of the plea, but he expressly did not disavow the Crown’s understanding of it which was placed on the record at trial. Further, that same basis was embraced by the applicant at the proceedings on sentence and relied upon as remorse. It is also relevant that the applicant elected not to give evidence at trial and no Crown witness adopted her version of events.

10. [126]

    Count 4 was the third alternative to counts 1, 2 and 3, being the only alternative count that did not have any sexual assault as an element of the offence, consistent with the fact that the real issue at trial was whether the complainant was party to an agreement to sexually assault the complainant in company.

11. [127]

    The transcript at trial reflects that there was no real issue about element 5 raised at the trial, which is not consistent with the basis for the plea now advanced by the applicant. Despite this, I accept the applicant’s submission that the factual substratum on which the plea of guilty to count 4 was based was not identical to the factual substratum of element 5. The elements of count 4 were confined to the intentional or reckless infliction of ABH in company. It was no element of that physical assault that it was connected in any way with a sexual assault as it was the applicant’s denial of the assault being part of any agreement to sexually assault the complainant which was the focus of dispute at the trial.

12. [128]

    Although the plea of guilty by the applicant to count 4 appeared to remove the issue of reckless infliction of ABH as a real issue at the trial, I cannot accept the Crown submission that this means that the applicant made clear at the trial that element 5 was not in dispute. On that basis, it could not be said that this case falls into the category of cases such as Kalbasi and Agnew.

13. [129]

    The question then becomes whether the jury was adequately directed in relation to element 5 given the issues at trial.

14. [130]

    Each of the essential elements of the offence for which the applicant was convicted was explained to the jury and it was explained to them that they had to be satisfied that each element had been proved beyond reasonable doubt. Similarly, the requirements of a JCE were explained to the jury, although it is to be accepted that the focus of that direction was on the sexual nature of the assault.

15. [131]

    The nub of the complaint under grounds 1 and 2 is that, although the jury was directed about the need to be satisfied beyond reasonable doubt of element 5 and was separately given a JCE direction, those two directions were not adequately drawn together. The result, it was contended, was that the jury would not have understood that the Crown had to prove beyond reasonable doubt that the applicant was part of an agreement to commit an offence which included element 5 (ground 1) nor that the focus in element 5 was on the state of mind of the applicant (ground 2).

16. [132]

    As to ground 1, the jury could not have been in any doubt as to the nature and scope of the JCE. The Crown case was that the JCE was to obtain the drugs, if necessary, by the use of force which expanded to an agreement to sexually assault the complainant when she resisted. The jury was directed that the Crown case was that the co-accused acted with a “singular purpose” to take drugs from the complainant “by any means” and that this involved “escalating conduct”. The enterprise started with physical violence, intimidation and demands for the complainant to remove the drugs herself and finally culminated with sexual violence when she refused to do so. The jury was directed that the Crown had to prove that the crime the subject of the agreement was, in fact, committed.

17. [133]

    The jury was instructed that element 5 was that immediately before the commission of the sexual assault offence, ABH was intentionally or recklessly inflicted on the complainant. Although the JCE direction focussed on the sexual assault, the jury would have been in no doubt that the Crown had to establish beyond reasonable doubt that the assault itself was the subject of the agreement. Having regard to the way the case was put to the jury, it is difficult to see how they could have been satisfied beyond reasonable doubt of the agreement in relation to element 1, but not in relation to element 5.

18. [134]

    As to ground 2, I am satisfied that when the directions are considered together, it was made clear to the jury that the element of recklessness as to the infliction of ABH (element 5) was concerned with the applicant’s state of mind, and not the state of mind of any co-accused. Not only was the jury directed that element 5 had to be proved for each accused on a number of occasions, the only person identified as having inflicted the ABH was Ms Hardy, who was a witness at trial and not an accused.

19. [135]

    In respect to both grounds 1 and 2, the Crown relied on the trial judge’s discussions of the draft directions with counsel and the fact that counsel took no issue with them. This lack of complaint at trial is relevant on two bases. The first basis is that r 4.15 of the Criminal Appeal Rules applies. That rule is in these terms:

20. [136]

    The applicant contended that r 4.15 did not apply in this matter. On its terms it clearly applies; under grounds 1 and 2 it is contended that there was an “omission to direct” and no “objection was taken at the trial to the ... omission”. The basis for the applicant contending that the rule does not apply in this case relies on authority suggesting that when the relevant ground of appeal raises a question of law alone in respect of which the applicant has a right of appeal pursuant to s 5(1) of the Criminal Appeal Act, the right to argue that ground cannot be curtailed by a subordinate rule such as r 4.15: see Doyle v R; R v Doyle [2014] NSWCCA 4 per Bathurst CJ at [426] and Hogg v R (2019) 101 NSWLR 524; [2019] NSWCCA 323.

21. [137]

    I do not consider it necessary to resolve the interplay between s 5(1) of the Criminal Appeal Act and r 4.15 in the present case. Although I am not satisfied that the applicant’s trial miscarried, I am prepared to grant leave to argue the ground given that directions on JCE can give rise to complexity.

22. [138]

    The second basis upon which the failure to make any complaint is relevant in this matter is on the question of materiality. The approach taken by trial counsel has fortified my conclusion that the applicant has failed to establish that any omission to direct on a question of law by the trial judge had any legal effect in the trial. The failure by counsel to seek a re-direction is a strong indication that there was no miscarriage of justice: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]. To put this another way, the failure to complain about either of these directions at trial may be explicable by the fact that, in the atmosphere of the trial, counsel saw no unfairness: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472 at [58]-[61]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121], and Greenhalgh v R [2017] NSWCCA 94 at [42].

23. [139]

    I would grant leave to argue these grounds but would not uphold grounds 1 and 2.

Ground 3

1. [140]

   The applicant’s complaint under ground 3 turns on the use of the language of “exposure” to a sexual assault in the trial judge’s directions on three occasions (see above at [84], [85], [89]). It was submitted that this direction indicated to the jury that the requisite agreement could be to “something less than to commit the full actus reus of the charged offence” and left it open to convict the applicant without being satisfied that she had reached an agreement to sexually assault the complainant. It was submitted that this “something less” could be merely an agreement to what the applicant did in fact do on the Crown case, namely holding down the complainant, without having agreed to the digital penetration of the complainant without her consent.

2. [141]

   The applicant relied on the fact that the Crown case was one of straightforward JCE and not an extended one, in which the language of exposure to contemplated incidents would be more apt.

3. [142]

   The applicant submitted that the confusion caused by the language of “exposure” was not remedied by the subsequent directions to the jury that they “must be satisfied beyond reasonable doubt that the three accused had an agreement to sexually assault [the complainant] to forcibly remove the drugs that were secreted in her vagina”.

4. [143]

   It was further submitted during the hearing of this appeal that evidence of the call for gloves prior to the sexual assault was equivocal because their intended use could have been to handle the drugs that the complainant removed herself. In that respect, the applicant relied on the two jury notes (MFI 59 and MFI 60) which showed that the jury were concerned with the possibility that the complainant had removed the drugs herself.

5. [144]

   The Crown submitted that the trial judge’s directions made it clear that the JCE which had to be proved beyond reasonable doubt was an agreement to digitally penetrate the complainant in order to retrieve the drugs from her vagina. In each instance where the trial judge used the phrase “exposed … to sexual assault”, it was submitted that this was almost immediately followed by the direction that the jury had to be satisfied that the three accused had “an agreement to sexually assault [the complainant] to forcibly remove the drugs that were secreted in her vagina”. The Crown also relied under this ground on the absence of any issue raised by the applicant’s trial counsel with the draft directions circulated by the trial judge.

Consideration – Ground 3

1. [145]

   As with grounds 1 and 2, ground 3 also relies on establishing second limb error for the purposes of s 6(1) of the Criminal Appeal Act. Thus, the applicant must establish that in using the words “exposed to” in the impugned direction, in the context of the summing up as a whole, the trial judge erred on a question of law that has legal effect in the trial, and that the error was material in the sense that it could realistically have affected the reasoning of the jury to the verdict of guilty.

2. [146]

   The trial judge instructed the jury that element 1 concerned the digital penetration of the complainant’s vagina by Ms Blair. Her Honour drew their attention to AA’s evidence that Ms Blair’s fingers went into the complainant’s vagina and removed the egg and a smaller package. The trial judge also directed the jury that the Crown case was that the three accused carried out the JCE and that the crime the subject of the JCE was the crime that was in fact committed.

3. [147]

   When giving the JCE direction, the trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the accused was part of an agreement or understanding that an act would be committed that “exposed” the complainant to a sexual assault. As can be seen from the written and oral directions set out above at [79]-[89], on each of the three occasions in which the word “exposed” was used in this context, her Honour went on, a few sentences later, to direct the jury that they had to be satisfied beyond reasonable doubt that the three accused “had an agreement to sexually assault” the complainant by forcibly removing the drugs that were secreted in her vagina. The trial judge also explained the Crown case, the elements of the offence, and the nature of the JCE in the terms I have set out above at [89]. It is plain from the context that the trial judge was using the word “exposed” not to mean “put [the complainant] at risk of” but to mean “subjected” the complainant to a sexual assault.

4. [148]

   The trial judge reminded the jury of the evidence at trial which was that when the complainant failed to hand over the drugs after being physically assaulted, there was a call for gloves to be provided; on the Crown case this was to extract the drugs from the complainant’s vagina. The evidence was that the applicant was present during the assault and threats, was also present when the call for the gloves was made (consistent with their use in the sexual assault), and that the applicant held the complainant down when Ms Blair then took the drugs from her vagina. I am not satisfied that, when viewed in the context of the summing up as a whole, the reference to the words “exposed to” left it open to convict the applicant on any basis other than that she had reached an agreement to sexually assault the complainant in the manner alleged by the Crown.

5. [149]

   I have considered the applicant’s reliance on the two jury notes (MFI 59 and MFI 60) and the directions given in relation to them. The applicant relied on them in support of this ground on two bases: as illustrative of the jury being concerned with the possibility that the complainant had removed the drugs herself and to contend that the directions to the jury by the trial judge in responding to those questions failed to adequately remedy the alleged error.

6. [150]

   The jury questions may have arisen from the fact that the expressions “sexual assault” and “sexual intercourse” were both used in portions of the trial judge’s summing up. Although the trial judge referred to the expression “sexual assault” in the direction impugned under this ground, element 1 was explained to the jury in this way:

7. [151]

   That the jury may not have fully understood the interplay between these expressions was made clear by the notes received. On Tuesday 9 April, the jury asked whether there was a difference between the two expressions. After consulting with trial counsel, the trial judge directed the jury in the terms set out above at [84]. That direction included that the jury “must be satisfied beyond reasonable doubt that the three accused had an agreement to sexually assault [the complainant] to forcibly remove the drugs that were secreted in her vagina”.

8. [152]

   Having regard to the summing up as a whole, I am not satisfied that the impugned directions could have resulted in the applicant being convicted on a basis either that she simply held the complainant down without agreeing to the sexual assault or that the complainant removed the drugs herself. Further, although I am not satisfied that the directions left any doubt as to what the Crown had to prove for element 1, even if they did, any such confusion would have been dispelled following the re-direction by the trial judge in responding to the jury notes. I am satisfied that the trial judge adequately directed the jury that they had to be satisfied beyond reasonable doubt that the agreement, as it evolved, was to remove the drugs from the complainant’s vagina which involved digitally penetrating her to do so.

9. [153]

   Again, this ground of appeal raised a complaint about a direction which was not raised before the trial judge. I propose to grant leave to argue this ground but dismiss it for the same reasons as I provided for grounds 1 and 2.

Orders

1. [154]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant leave under r 4.15, Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Dismiss the appeal.

2. [155]

   SWEENEY J: I agree with N Adams CJ at CL that the trial judge’s directions were not erroneous in the circumstances of this trial. I agree with the orders proposed by her Honour and her reasons for those orders.