KA v R

1. [1]

   MEAGHER JA: I agree with the orders proposed by Simpson J. Subject to the additional observations below, my reasons for doing so are the same as those given by her Honour. What follows assumes a familiarity with her Honour’s judgment.

2. [2]

   Ground 2 is concerned with the adequacy of the trial judge’s direction as to the appellant’s participation in a joint criminal enterprise with EZ in relation to the commission of the first offence charged.

3. [3]

   Each was charged that on 5 May 2012, being in the company of the other, he did have sexual intercourse with the complainant without her consent and knowing that she was not consenting.

4. [4]

   The Crown case (see Simpson J at [27]) was that although the act of forced fellatio was committed by EZ the appellant was equally guilty because the two of them acted in concert in pursuance of a common purpose that they would commit that crime. In such a case if “one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission”: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 114.

5. [5]

   The doctrine of common purpose or joint criminal enterprise, as the High Court noted in Huynh v The Queen [2013] HCA 6; 87 ALJR 434 at [37], “provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution”. In Huynh at [37], the Court also approved the explanation of the relevant principles given by McHugh J in Osland v The Queen [1998] HCA 75; 197 CLR 316 at [72] - [94]. That explanation in turn adopts as accurate the statement of this Court in R v Tangye (1997) 92 A Crim R 545 at 556 - 557, in the passage extracted in the judgment of Simpson J at [91].

6. [6]

   As was emphasised in Tangye at 556 - 557:

7. [7]

   The doctrine of joint criminal enterprise makes parties to an understanding equally liable for the acts that constitute the actus reus of the crime which is the subject of that understanding: Osland at [73] citing Tangye. That will be so notwithstanding that one party to the understanding does not commit any of those acts, provided that that party participates in some way in the commission of the crime. That requirement of participation will be satisfied if the person is present when the crime is committed in accordance with the continuing understanding: Osland at [27], [73]; Huynh at [37].

8. [8]

   It was also necessary for the Crown to establish that at the time the acts constituting the actus reus were committed, the appellant had the requisite mens rea: Osland at [79], [81], [93]; Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [19]; McEwan, Dambitis & Robb v The Queen [2013] VSCA 329 at [35], [38].

9. [9]

   The elements of mens rea required under an offence provision similar to s 61J of the Crimes Act 1900 (NSW) were considered by the High Court in Gillard v The Queen [2014] HCA 16; 88 ALJR 606 (there s 54 of the Crimes Act 1900 (ACT) was in issue):

10. [10]

    In R v Tyrone Chishimba [2010] NSWCCA 228, three persons were charged with an offence under s 61J in circumstances where the complainant was not able to identify which of the three accused (each of whom was present at the relevant time) had sexual intercourse with her. Counsel for one of the accused submitted that s 61R (since repealed and see now s 61HA(3)(b)) did not apply to the attribution of knowledge to a party to a joint enterprise who was not the actual perpetrator of the offence. Macfarlan JA (James J and McCallum J agreeing on this question) rejected this argument, observing at [169]:

11. [11]

    Here the Crown case was that the understanding between the appellant and EZ, and the appellant’s guilty state of mind were to be inferred from the relevant events leading up to the commission of the crime and the circumstances of the crime itself. On the Crown’s version of events, all of the things necessary to constitute the crime were committed by EZ in the presence of the appellant and the appellant participated in those events beyond merely being present.

12. [12]

    It is in this context that the appellant’s somewhat elusive argument in support of ground 2 falls to be considered. It was submitted (tcpt 14/11/14, p 2 line 20 - p 6 line 16) that the trial judge had not directed the jury that it was necessary that the Crown prove that the understanding between the appellant and EZ was that each of the things necessary to constitute the crime charged would be committed by one or other of them including that the perpetrator either know that the sexual intercourse was without the complainant’s consent or be reckless as to whether she was consenting.

13. [13]

    The relevant extracts from the trial judge’s summing up are set out in the judgment of Simpson J at [116]. The appellant’s submission focused on the following part of that direction:

14. [14]

    It was argued that the trial judge’s summing up, and in particular this direction, did not make clear that the understanding to which the appellant was a party had to be that the sexual intercourse take place without the complainant’s consent and that the jury also had to be satisfied that the appellant knew that the complainant was not consenting when the crime was committed by EZ.

15. [15]

    Earlier in his summing up, the trial judge stated that the elements of the offence included that the sexual intercourse be without the complainant’s consent and that the perpetrator know of that lack of consent. The trial judge also directed the jury as to the need for the Crown to establish beyond reasonable doubt both that the appellant was party to a continuing understanding with EZ that the acts constituting the crime would be committed by EZ and that it was committed in pursuance of that understanding. As had earlier been explained to the jury, the elements of that crime included EZ’s knowledge that the complainant was not consenting.

16. [16]

    The specific direction extracted above did not contradict or qualify what the trial judge had already said. It addressed the question of the “shared intention” of the appellant and EZ and did so in circumstances where the understanding or agreement referred to plainly concerned the crime of having sexual intercourse with the complainant without her consent. For that reason the appellant’s first submission as to the inadequacy of the summing up should be rejected.

17. [17]

    For the Crown to establish that EZ had sexual intercourse with the complainant without her consent, knowing that it was without her consent or reckless as to whether he had that consent, it was not necessary that it prove that the appellant also knew that the complainant was not consenting.

18. [18]

    However to establish that the appellant was guilty as a party to a joint criminal enterprise to commit that crime, it was necessary that the Crown prove that at the time of the commission of the principal act constituting the crime - sexual intercourse without consent - the appellant knew that the complainant was not consenting or was reckless as to the complainant’s consent. That was in addition to its proving that the appellant was party to a continuing understanding with EZ that they would have sexual intercourse with the complainant without her consent, either knowing that to be the position or being reckless as to the fact of consent. Proof of (i) the existence of that continuing understanding, (ii) the commission of that crime and the appellant’s participation in it and (iii) his knowledge of the absence of consent was necessary to make him criminally liable for EZ’s acts. The fact of that understanding and of the appellant’s presence and active participation were relied on by the Crown to establish that the appellant had the mens rea necessary to complete the commission of the crime: Osland at [93]; Likiardopoulos at [19].

19. [19]

    The trial judge directed the jury that for the Crown to establish the appellant’s guilty state of mind it had to prove that he shared an intention with EZ that the sexual intercourse be without the complainant’s consent or reckless as to whether she was consenting or not. The intention with which this direction is concerned is not merely a forward looking one that they would commit the acts constituting the crime. In terms it is described as an intention “shared” with EZ that there be sexual intercourse with the complainant without her consent or regardless of her consent. The trial judge earlier explained to the jury that in considering the question of EZ’s state of mind “you have to have regard to all of the circumstances, every circumstance under which the activity was committed.” (summing-up tcpt 15/05/13, p 10). In this way, the direction made sufficiently clear that the jury had to be satisfied that the appellant, like EZ, had either to have known at the time the intercourse occurred that the complainant was not consenting or to have been reckless as to that consent.

20. [20]

    Grounds 1 and 3 are that the verdicts in relation to counts 1 and 2 are unreasonable and cannot be supported by the evidence. Having made an independent assessment of the whole of the evidence, I agree with Simpson J that it was open to the jury to be satisfied of the appellant’s guilt on each of those charges beyond reasonable doubt. The matters relied upon by the appellant, and to which her Honour refers, do not justify the conclusion that the jury must reasonably have entertained a doubt about the appellant’s guilt: see Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].

21. [21]

    SIMPSON J: On 6 May 2013, in the District Court, the appellant and another male (to whom I will refer as EZ) were arraigned on an indictment that contained two counts alleging aggravated sexual intercourse without consent, brought pursuant to s 61J of the Crimes Act 1900 (NSW). The circumstance of aggravation alleged was that each offence was committed in company. Each accused entered a plea of not guilty to each count, and a trial by jury proceeded. The Crown case was that both offences were committed against the same victim, on 5 May 2012, and that the two accused were parties to a joint criminal enterprise.

22. [22]

    On 17 May the jury returned verdicts of guilty against each accused on each count. Pursuant to s 61J(1) of the Crimes Act, the offenders were rendered liable to a maximum penalty of imprisonment for 20 years. On 30 August Frearson DCJ sentenced both offenders. In respect of the appellant, on the first count, he imposed a fixed term of imprisonment of 23 months, commencing on 24 August 2013; on the second count, he imposed a term of imprisonment of 4 years, commencing on 24 November 2013 (and therefore accumulated by 3 months) with a non-parole period of 2 years which will expire on 23 November 2015. The total effective term of imprisonment is one of 4 years and 3 months, with a non-parole period of 2 years and 3 months. In so sentencing the appellant, Frearson DCJ found, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) special circumstances that justified departure from the proportion of the non-parole period to the head sentence that would have otherwise been required (that proportion being 75 per cent). His Honour gave as his reasons for the variation the appellant’s youth, and that the sentence would represent the appellant’s first period of incarceration. The overall non-parole period is 52 per cent of the overall head sentence.

23. [23]

    Frearson DCJ sentenced EZ, on the first count, to imprisonment for a fixed term of 14 months, commencing on 28 August 2013; on the second count to a term of imprisonment of 2 years and 2 months, commencing on 28 December 2013 (and therefore accumulated by 4 months) with a non-parole period of 13 months that expired on 27 January 2015. EZ’s effective sentence was of imprisonment for 2 years and 6 months, with a non-parole period of 17 months.

24. [24]

    The appellant now appeals against the convictions, and seeks leave to appeal against the sentences.

25. [25]

    The grounds of appeal against conviction involve the sufficiency of the evidence to support the convictions, and the directions given to the jury concerning the principles of joint criminal enterprise and circumstantial evidence. Having regard to the grounds advanced on the appellant’s behalf, it is necessary to set out, in some detail, the nature of the Crown case, and the responses made to that case.

The Crown case

1. [26]

   A brief outline of the Crown case follows. It will be necessary to examine more closely the evidence of the complainant, of various Crown witnesses, and of the appellant and of a witness called on his behalf.

2. [27]

   From about 7.15pm on 5 May 2012, the complainant, who was then 14 years of age, was with two friends of the same age at a park near Coogee Beach. There they consumed pizza, and tequila mixed with soft drink. The complainant became intoxicated. The three then joined another group of teenagers (older than they) at a nearby location on the beach. The appellant and EZ were among that group. The complainant stumbled and fell, and EZ assisted her to her feet and then steered her away from the group and up a hill. After a time, EZ was joined by the appellant. The complainant was sufficiently intoxicated as to need assistance in walking up the hill. The appellant gave that assistance. The complainant fell. The appellant pulled her up so that she was on her knees. EZ then, with the assistance of the appellant, forced his penis into the complainant’s mouth. This was the act that, the Crown alleged, constituted the sexual intercourse without consent the subject of the first count on the indictment. Although the appellant was not responsible for the act of intercourse, his presence and participation was, on the Crown case, sufficient to render him liable on the principles of joint criminal enterprise.

3. [28]

   Very soon after, another act of intercourse took place, this time penile/vaginal. Although in her evidence the complainant attributed this act to EZ, it was, on the Crown case, the appellant who penetrated the complainant. The Crown called DNA evidence to support that assertion. This was the act that gave rise to the second count on the indictment.

4. [29]

   Police were notified of the events in the park. A little before 10.00pm various police officers arrived at the scene. EZ and the appellant were arrested and taken to the Maroubra Police Station. Their clothing was taken for the purposes of DNA testing. A doctor (Dr Clifford) attended for the purpose of taking swabs, also for the purposes of DNA testing. I will refer to the results of DNA testing below.

5. [30]

   The complainant was taken to the Royal Prince Alfred Hospital. At about 4.00am Constable Danielle Roger took a statement from her. At about 9.00am the following day, 6 May, the complainant was examined by Dr Sumethri Rajendran. Dr Rajendran took a history from the complainant, and also took swabs from her mouth and vagina for the purposes of DNA testing. This DNA testing produced little of assistance. No semen was detected in the swabs from the complainant’s vagina.

6. [31]

   The complainant made a lengthy recorded interview with police on 9 May 2012, and another on 19 April 2013.

The Crown opening

1. [32]

   At the commencement of the trial the Crown prosecutor opened the case he proposed to present. He outlined the evidence he anticipated to be given concerning Count 1, the alleged act of oral intercourse by EZ. The transcript records that he said:

2. [33]

   He proceeded to outline the Crown allegations with respect to Count 2, the penile/vaginal intercourse with the complainant, and is recorded as saying the following:

3. [34]

   A little later, the Crown prosecutor said:

4. [35]

   A little later the Crown prosecutor is recorded as follows:

5. [36]

   Towards the conclusion of his opening, he said:

The defence opening

1. [37]

   Senior counsel who represented EZ made a brief opening. He said that the case for EZ acknowledged that he had had oral sex with the complainant, but that he believed that it was with her consent, and that he had every reason to believe that she was consenting.

2. [38]

   Counsel who represented the appellant also opened briefly. With respect to Count 1, he said that the appellant’s case was that he did not see any act of fellatio between EZ and the complainant, and that it would be put to the jury that they could not be satisfied that any such act was part of a joint criminal enterprise. With respect to Count 2, he said that the appellant’s case was that the penile/vaginal intercourse the subject of that count simply did not occur.

The evidence in the trial

1. [39]

   I turn now to an outline of the evidence so far as it is relevant to the various grounds of appeal pleaded. I preface that by noting that it was common ground in the trial that EZ was of a smaller, slighter build and stature than the appellant, and that the appellant was larger and bulkier. It was common for witnesses to differentiate between them using such terms. Where it is clear from the descriptions used by witnesses that the reference is to EZ or the appellant, I will use those terms rather than the clumsier descriptions.

2. [40]

   The complainant’s evidence in chief was as follows.

3. [41]

   On at least one occasion the complainant fell over. A male came to help her. (It was common ground that this was EZ.) The complainant described him as “kind of slim, muscular, like athletic build”, with a Lebanese, or “western Sydney” accent. EZ helped the complainant to her feet, put one arm around her, and walked away with her at a “fast, really fast” pace. With the other arm he held her wrist.

4. [42]

   The complainant was quite affected by alcohol. EZ started to walk her up a hill. The complainant protested. She told him that she wanted to stay with her friends, and “kept screaming out” for her friends, calling them by name. EZ put his hand over her mouth. S began to walk along with them, asking EZ where he was taking the complainant, and telling him to leave her alone. EZ told S to go away. Another boy (not the appellant) approached and told S that she had dropped her bottle. EZ engaged the complainant in conversation, telling her she was pretty and that he liked her. She joined in the conversation, and told him that she liked him too. They walked up the hill, EZ supporting her.

5. [43]

   At this point, another man joined them. The complainant described him as “a big guy” and said that, because she could not really walk, “he was pretty much carrying me up the hill now”. It was accepted that this evidence related to the appellant.

6. [44]

   The following evidence is recorded in the transcript:

7. [45]

   After they reached the top of the hill, she started walking down the hill, but she tripped over and fell to the ground. Both EZ and the appellant were still present. The complainant told EZ and the appellant that she wanted to remain on the ground. However “the big guy” (that is, the appellant) was grabbing her arm, attempting to pull her up and urging her to keep going. He pulled her to her knees. EZ was standing in front of her. The appellant was to one side, but:

8. [46]

   EZ pulled down his pants and exposed his penis, which he attempted to insert in the complainant’s mouth, eventually succeeding in doing so. The complainant said that she kept trying to pull her head away and telling him that she did not want to engage in the conduct. When he eventually did succeed in inserting his penis into her mouth, she bit it. He said:

9. [47]

   While this was happening the appellant was standing to one side. As she turned her head:

10. [48]

    The transcript then records the following evidence:

11. [49]

    The complainant was then asked what she remembered of the male who was doing this, to which she replied:

12. [50]

    In answer to a question from the trial judge, the complainant confirmed that the male who had penile/vaginal intercourse with her was “the boy that took me away”, that is, EZ.

13. [51]

    In cross-examination by senior counsel representing EZ, the complainant acknowledged that notes made by Constable Roger of the conversation with her at the hospital included the following:

14. [52]

    It was put to the complainant that she had told the police officers at the hospital that she believed that the male who penetrated her vaginally was “the heavier male” (that is, the appellant) because of his weight. She replied:

15. [53]

    In cross-examination on behalf of the appellant, the complainant acknowledged that, in the first interview with police (9 May 2012), she had been asked what the “bigger guy” (that is, the appellant) was doing (during the first incident), to which she replied:

16. [54]

    Later in the cross-examination on behalf of the appellant, she gave the following evidence:

17. [55]

    The cross-examiner went on to put to the complainant that no such act of intercourse had ever been performed upon her on that day, and that “for your own reasons you are making that up?”. She answered both questions by saying that the proposition contained therein was not true.

18. [56]

    Evidence was also given by the complainant’s two friends who had accompanied her to the park, and by two other young women who were also present but not part of the complainant’s group, or the appellant’s group.

19. [57]

    One witness to whom I will refer as “KL” was a 16 year old female present at the park with friends (one of whom was “LW”). They were sitting on the roof of a small building. KL saw two boys (who, it was not disputed, were EZ and the appellant). A female (the complainant) was lying on the ground. One of the males was standing on top of (over) the complainant, with a leg on either side of her body. This was the smaller of the two males (EZ). The larger (“chubbier”) man (the appellant) was standing nearby, looking towards where KL and her group were. The complainant attempted to get up; EZ pushed her back to the ground.

20. [58]

    KL was concerned about the welfare of the complainant, and approached the appellant, and asked if the complainant was “okay”. He replied that she was, and said “that’s his girlfriend”. KL asked if the complainant needed help, or needed to be taken to the security guards; the appellant said that she did not, but asked if KL had any water. KL then saw the three move on; the males each had an arm around the complainant, helping her up the hill.

21. [59]

    In cross-examination KL said that the appellant was about 5 metres away from the complainant and EZ.

22. [60]

    LW gave evidence similar to that of KL, and agreed that the appellant was about 5 metres away from the complainant and EZ.

23. [61]

    As mentioned above, the complainant was examined by Dr Rajendran at the hospital, beginning at 9.00am on 6 May 2012. The history taken by Dr Rajendran was given in her evidence in chief, and includes:

24. [62]

    Dr Rajendran conducted a physical examination of the complainant. She observed light bruising to the complainant’s knees. She found that the complainant did not have a very prominent hymen, and that it was unbroken. That did not necessarily exclude vaginal penetration, because the hymen is an “extensile” organ, capable of stretching and expanding to admit a penis or digit without injury. She did not see any semen in the complainant’s vagina.

25. [63]

    In cross-examination Dr Rajendran agreed that in most cases of vaginal penetration, some rupture to the hymen would be expected.

26. [64]

    Dr Rajendran then took samples of the complainant’s bodily fluids which were sent for DNA testing.

27. [65]

    At some time after 9.00am on 6 May, at the Maroubra Police Station, Dr Clifford took swabs from the shaft and the head of the penises of both EZ and the appellant. “Tape lifts” were taken from the underwear that they were wearing when arrested. The swabs and the tape lifts were sent to Forensic Analysis and Science Services, where they were analysed by Ms Sandra Trabuio, a scientist employed at that laboratory.

28. [66]

    Also at some time after 9.00am on 6 May, Dr Rajendran took swabs from the mouth and vagina of the complainant. These were also sent to Forensic Analysis and Science Services for analysis by Ms Trabuio.

29. [67]

    Ms Trabuio gave the results of her analysis as follows. I note here that, in the case of each sample that yielded positive results, there was (as is usual) a major contributor and a minor contributor. In two of the results is this of any significance.

30. [68]

    The results were as follows:

31. [69]

    Examination by Dr Rajendran of the complainant’s vagina, and DNA testing of the swabs taken from her vagina detected no deposits of semen. Examination of swabs taken from her mouth revealed one sperm head, which was inadequate for the purposes of DNA identification.

32. [70]

    The one area in which the relative contribution was significant was in the results from the underpants of the appellant and EZ. There the DNA consistent with that of the complainant was the DNA of the major contributor. Ms Trabuoi gave an explanation for that. She said that if the DNA of the major contributor was not the DNA of the person who wore the underpants, that was an indication that the DNA probably came from “a rich source of DNA, something like saliva, vaginal secretions”. Ordinarily, she would expect that where the penis was rubbing on the underpants, large amounts of that DNA (that is, of the person wearing the underpants) would be present. She said:

33. [71]

    She said that the results from the shaft and head of the appellant’s penis, and from his underpants, were consistent with the appellant having put his penis inside the complainant’s vagina and then putting on his underpants. That was because if the penis were inside the vagina it would be expected that when removed it would be “quite moist”, and when the underpants were put back on, a transfer from the penis to the underpants would be effected. That could explain why the major contributor to the DNA in the appellant’s underpants was not the appellant, but could have been the complainant.

34. [72]

    With respect to the absence of semen in the complainant’s vagina, Ms Trabuio said that it was unlikely that skin cells from a person who had inserted his penis into a female vagina would be still present after six hours since that occurrence, and “very impossible” after 12 hours. It will be recalled that the complainant’s examination by Dr Rajendran commenced at some time after 9.00am. The evidence does not disclose with precision when the events the subject of the charges occurred, but police were called at about 9.45pm.

35. [73]

    In cross-examination on behalf of the appellant, Ms Trabuio agreed that DNA could be transmitted to a person’s hand by the mechanism of that person touching an item of clothing (particularly if the item of clothing was moist). It is best to set out the evidence as it is recorded in the transcript:

The defence cases

1. [74]

   The responses made by or on behalf of the appellant and EZ were markedly different.

2. [75]

   The appellant gave evidence. His evidence was to the following effect.

3. [76]

   The appellant first saw the complainant when “my mate [EZ] was picking her up”. She hugged EZ. He hugged her. They then walked off in a northerly direction. The appellant joined the complainant’s friends. He and a friend of the complainant (N) followed EZ and the complainant, until they disappeared from view. N asked the appellant to go and get the complainant. He told N to sit next to a nearby hut, while he walked in a northerly direction to find EZ and the complainant. He saw them a distance up the hill and jogged and walked towards them. He lost sight of them for 3 to 5 (or a little over) minutes. He did not see them again until he reached the top of the hill. He started to walk towards them, and was approached by another woman, who asked about the welfare of the complainant (this was KL). The appellant replied that she was all right, she was EZ’s friend, and EZ was taking care of her. He began walking towards EZ and the complainant, and saw them walking off. He shouted to them, but they did not reply. He continued to call after them, and eventually caught up with them at the top of the hill. He shook EZ’s hand, and said hello to the complainant. She was very friendly. She asked if she could hold his hand and did so. She started to talk about N. She seemed excited and was very talkative. He suggested that they return to the group, and she said that she did not want to because it was boring. He suggested that she telephone her friends, and she produced her mobile phone. She was unable to remember her passcode. She then dropped the phone. They looked for it but the complainant said not to worry about it.

4. [77]

   The complainant was being flirtatious with EZ, holding him, whispering to him, and, the appellant thought, kissing him.

5. [78]

   EZ and the complainant walked on. The appellant remained where he was, and called another friend. He saw EZ and the complainant walk away. The appellant telephoned two other friends. He again lost sight of EZ and the complainant. EZ returned, alone, and joined the appellant. One of the friends to whom he had spoken called the appellant. He said that they were trying to find the complainant, and to return to the group. He walked further, and saw the complainant. She was naked from the waist down. He asked her what she was doing. She did not reply. Her clothes and bag were nearby. He picked up her shorts and pants. One of the items (he did not know which) was wet. He told her to put them on. She did not take them. She began to sway, and leaned towards him, and put all of her weight on him. He dropped the clothes and held her, so that she would not fall down. She was near some rocks. He found a suitable location on a flat rock and laid her down. He retrieved her shorts and handed them to her and asked her to put her shorts on, but she did not. He put the shorts down next to her. He could not recall if he also picked up her underwear. At this point she appeared intoxicated. He told her not to move, that he was going to get her friends. EZ was still present. The appellant told EZ that they had to get the complainant’s friends. He told EZ to wait because he (the appellant) was going to urinate. In his evidence in chief, he did not say that he had in fact urinated. Shortly after that, the police came and arrested him.

6. [79]

   In cross-examination the appellant expressly denied having seen EZ undo his jeans, expose his penis, insert his penis into the complainant’s mouth, or having seen the complainant move her head away. He denied holding her head in front of EZ, or seeing the complainant fall to the ground. He also expressly denied lying on top of the complainant or putting his penis in her vagina, or having intercourse with her. He said that he had a very vague recollection of urinating after he had left the scene.

7. [80]

   The appellant also called expert evidence with respect to DNA, from Professor Boettcher.

8. [81]

   Professor Boettcher, who was accepted as an expert in the field, gave evidence concerning the transfer of DNA. He said, for example, that DNA cells can be transferred from one person to another by handshaking. It is best to reproduce his subsequent evidence as it appears in the transcript:

9. [82]

   Professor Boettcher was asked to assume penile/vaginal intercourse with no ejaculation and no condom use, and was asked what were the chances of the male DNA being left in the vagina. He said that he considered it would be certain that there would be some cells left there, and would be detectable. However, when asked how long that DNA would be detectable, he was unable to answer. It depended, in part, from where in the vagina the swab was taken. He agreed that urination might wash away the cells from the lower vagina, but that would not occur in respect of the upper vagina.

10. [83]

    In cross-examination Professor Boettcher was asked about his examination of the DNA results provided by Ms Trabuio. What emerged from that cross-examination was that, it appeared from Ms Trabuio’s report, once the complainant’s physical examination revealed no semen, no further testing was undertaken for DNA from a male source other than semen.

11. [84]

    EZ did not give or call evidence. He relied on cross-examination of the Crown witnesses. Senior counsel who represented him opened and closed to the jury on the basis that he had engaged in oral intercourse with the complainant, but that he believed that the intercourse was consensual.

The issues in the trial

1. [85]

   The issues for the jury therefore were:

2. [86]

   In relation to Count 2, the appellant was charged as the principal perpetrator. This meant that, so far as he was concerned, the doctrine of joint criminal enterprise was immaterial. (It was relevant to the liability of EZ in respect of that offence, but that is not in issue in this appeal.) The doctrine was immaterial so far as the appellant was concerned because of the manner in which the Crown went to the jury. There were hints in the opening address of the Crown (see the extracts in [33] to [36] above) that it might have sought to retain an alternative position, that EZ was the actual perpetrator of that offence, and the appellant was present as a secondary party. That was never developed.

3. [87]

   The Crown position was made quite clear in his final address. He said:

4. [88]

   This position, adopted by the Crown, left no room for the alternative hypothesis, that EZ was the offender who vaginally penetrated the complainant, and that the appellant was liable by reason of his participation in a joint criminal enterprise. The vague hint given at the end of the Crown opening, extracted above, that the Crown might seek to put such an alternative position, was not pursued. On appeal, the Crown did not contend that the appellant could have been convicted if the jury were in doubt that he was the perpetrator of the act, but was present pursuant to a joint criminal enterprise. The conviction must stand or fall on that basis.

The grounds of appeal

1. [89]

   The grounds of appeal were formulated as follows:

2. [90]

   It is convenient to deal first with Ground 2.

3. [91]

   The principles relating to joint criminal enterprise were stated by Hunt CJ at CL (McInerney and Sully JJ agreeing) in R v Tangye (1997) 92 A Crim R 545 at 556-557, in a passage which has received endorsement on many occasions, including in Osland v The Queen [1998] HCA 75; 197 CLR 316 at [73] per McHugh J; R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa [2010] NSWCCA 228 and Huynh v The Queen [2013] HCA 6; 295 ALR 624. The principles are stated as follows:

4. [92]

   The essentials are, therefore:

   1. (1)

      an understanding or arrangement between two or more persons that they will commit a crime. (The acts constituting the crime may be committed by either or both.);

   2. (2)

      the commission of the crime by one or other of the parties to the agreement or understanding;

   3. (3)

      participation by the other party to the agreement or understanding. (Participation may be effected by mere presence at the time when the crime is committed.)

5. [93]

   Applying those principles to the present case, the following observations may be made. The crime the subject of Count 1 was sexual intercourse without consent, with knowledge that the complainant was not consenting. The act constituting the crime was forcing the complainant to perform fellatio on EZ.

6. [94]

   Notwithstanding the age of the complainant (which would have rendered the act criminal in any event, and which was relied on by the Crown as a statutory alternative to the count on the indictment), as the case was presented by the Crown, an essential element of the crime was the actual absence of consent to the intercourse (to the knowledge of both EZ and the appellant) by the complainant. Proof that an act of intercourse is non-consensual and that an accused person knows that the act is non-consensual is not the same as proof that two accused persons agree to participate in a non-consensual act of intercourse. The agreement and the actuality are not coextensive.

7. [95]

   On the Crown case, the participation by the appellant was constituted not merely by his presence, but by his actively holding the complainant while EZ inserted his penis into her mouth.

8. [96]

   The relevant directions given to the jury were recorded as follows:

9. [97]

   Two separate written submissions were filed on behalf of the appellant in respect of Ground 2. In the first, the specific complaint made was relatively simple. It was that an essential element of proof of an offence on the basis of joint criminal enterprise is proof of participation. So much can be accepted. The complaint was that the trial judge failed to explain to the jury what was meant by “participation”. This omission meant, it was submitted, that the directions “failed to capture a crucial part of what it means to participate in a joint criminal enterprise”.

10. [98]

    The submissions, while complaining of the absence of any direction as to the meaning of “participation”, did not identify the content of the direction it was contended ought to have been given.

11. [99]

    In the second written submission (prepared by different, senior, counsel), a different approach was taken. On these submissions, the complaint was that the directions failed to make clear that, for the appellant to be guilty as a participant in a joint criminal enterprise (specifically, to commit the crime of having sexual intercourse without consent, knowing the complainant was not consenting), it was necessary that the jury be directed that the Crown had to prove (to the requisite standard) that the appellant knew that the complainant was not consenting to the sexual intercourse. The directions, it was contended, failed to do this. That was because the directions concerning the appellant’s knowledge of lack of consent were incorporated in the directions concerning intention, and did not separately address the question of the appellant’s knowledge as what might be called a secondary participant. In other words, as I understand the argument (as it is developed in the second written submission) the direction conflated the question of the intention to have intercourse without consent (as to which recklessness would be sufficient) with the appellant’s knowledge of the fact of the complainant’s lack of consent (as to which, it was submitted, recklessness would not be sufficient).

12. [100]

    In support of this submission reliance was placed upon a short passage in Giorgianni v The Queen [1985] HCA 29; 156 CLR 473 at pp 504-505. That case concerned an allegation of aiding and abetting the commission of an offence, a different way of establishing liability. However, in the joint judgment of Wilson, Deane and Dawson JJ, the following relevant passage appears:

13. [101]

    This complaint as to the directions on participation ought to be rejected. Participation may be proved, where the relevant arrangement or agreement is proved, by evidence of an accused’s mere presence at the scene of the crime: Tangye, in the principle numbered (3). The complainant’s evidence, if accepted, was ample to prove participation to that extent. However, the evidence went further than that, and asserted much more actual participation by the appellant.

14. [102]

    No disputed issue arose in the trial as to participation by the appellant. His case (which the jury clearly rejected) was that he was not present when EZ had sexual intercourse with the complainant, and therefore did not participate, either by his presence or otherwise.

15. [103]

    The complaint has echoes of the complaint made in Huynh (on appeal from the Full Court of the Supreme Court of South Australia): see [7]. Of that, the High Court said:

16. [104]

    Similarly, in the present case, proof of both agreement and participation depended upon the jury drawing an inference from the conduct of the appellant, as alleged by the Crown. Proof of the conduct was sufficient to prove participation. That depended upon the jury’s acceptance of the complainant’s account. If the jury accepted that account, it was entitled to draw the twin inferences as to the agreement and participation. It clearly did accept the complainant’s account, and drew the inferences.

17. [105]

    That brings me to an additional reason why this complaint ought to be rejected. The direct evidence in respect of the appellant’s participation in this offence is that of the complainant, and that of the appellant. On the appellant’s case, he was not present and knew nothing of EZ’s act of sexual intercourse with the complainant. On the Crown case, the appellant was not only present (which would be sufficient) but actively assisted by deflecting the attention of KL, (possibly) turning off the complainant’s mobile phone, attempting to pull her up from the ground after she fell, urging her to keep going, and holding her head so that EZ could commit the act. Had the trial judge directed the jury more explicitly on the meaning of participation, it would also have been necessary to refer the jury to the evidence of the conduct alleged against the appellant that constituted participation. Drawing attention to these matters could hardly have assisted him.

18. [106]

    The complaint as to the absence of direction on the appellant’s knowledge of lack of consent ought also to be rejected. The reference to “shared intention” in the extracted passage from the summing up makes it quite clear that the words that follow apply to both accused.

19. [107]

    Again, the state of the complainant’s mind was not an issue as between the Crown and the appellant. It was not the appellant’s case that he was aware that EZ was having sexual intercourse with the complainant, but believed that she was consenting. The appellant’s case was that he was unaware of the sexual intercourse between EZ and the complainant. I repeat, the task of the trial judge is to direct the jury in respect of the issues as they are fought in the trial.

20. [108]

    Further, as is the case with respect to the previous complaint, a direction in the terms for which the appellant now contends could not have helped him. It would, again, have been necessary for the trial judge to direct the jury with respect to the specific evidence of the complainant relevant to this issue. It will be recalled that her evidence was that the appellant was present while she was telling EZ that she did not want to engage in sexual activity, and was holding her up as she kept turning her head.

21. [109]

    In my opinion, on a fair reading of the directions given, it was perfectly plain that it was an essential part of the Crown case to prove that the complainant was, in fact, not consenting. Any additional direction would have been adverse to the interests of the appellant.

22. [110]

    I would reject Ground 2.

23. [111]

    The preliminary contention on behalf of the appellant under this ground of appeal was that “in truth” the case against the appellant in respect of Count 2 was circumstantial. That is not entirely correct. There was evidence from Dr Rajendran, to which there was no objection, that the complainant had given to her a description of the perpetrator consistent with the appellant and not with EZ. Dr Rajendran noted that the complainant said that she thought it was “the second male” who committed the second offence. She thought this because “he was heavy and was clothed differently”. That was direct evidence: Evidence Act 1995 (NSW), s 66(2).

24. [112]

    The direction given in this respect by the trial judge is recorded in the transcript as:

25. [113]

    Although, in the first set of written submissions filed on behalf of the appellant, specific arguments were directed to this ground, on the hearing of the appeal, senior counsel elected to address Ground 4 in conjunction with Ground 3 (that the verdict in respect of Count 2 is unreasonable).

26. [114]

    The submission was:

27. [115]

    It was proposed that the following direction ought to have been given:

28. [116]

    What was proposed in para 4.3 of the submissions was that, on the principles stated in Shepherd v The Queen [1990] HCA 56; 170 CLR 573, there was an “indispensable intermediate fact” upon which the Crown case depended, and which, therefore, it was necessary that the Crown prove beyond reasonable doubt. That that was the import of the submission was recognised by senior counsel in his oral argument. The “indispensable intermediate fact” was not specifically identified in the written submissions. However, in oral argument senior counsel identified it as “that DNA as a result of penile/vaginal intercourse was found on the appellant’s penis” (italics added). (It is the words “as a result of penile/vaginal intercourse” that are the key to this submission. There was no dispute that the complainant’s DNA was located on the appellant’s penis.) Senior counsel argued that, if there was some (reasonable) possibility that the complainant’s DNA had found its way onto the appellant’s penis by some means other than penile/vaginal intercourse, (such as the transfer mechanism) then the appellant was entitled to acquittal. Senior counsel put that in conjunction with the proposition, as recorded in the transcript “… if there was any [reasonable] possibility that the complainant was [sic - ? not] accurate in the evidence that she gave before the jury”, the appellant was also entitled to acquittal.

29. [117]

    Given that the complainant’s unequivocal evidence in chief was that the perpetrator of the second act of intercourse was EZ, and that the Crown sought to displace that certainty by (inter alia) the DNA evidence, the manner in which the complainant’s DNA came to be deposited on the appellant’s penis - and in his underpants - was of considerable significance. The only other item of evidence that inculpated the appellant as the perpetrator of this act was that of Dr Rajendran, who recorded the complainant in her history (taken within hours of the events) as having described the perpetrator of this act in terms that clearly identified the appellant.

30. [118]

    Shepherd is authority for the proposition that:

31. [119]

    Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed, said:

32. [120]

    In the circumstances of this case, it was, to a very significant extent, the DNA evidence that was relied upon to prove that the appellant was the person who had penile/vaginal intercourse with the complainant; that proposition was in direct contradiction of the oral evidence given by the complainant. But that does not compel the conclusion that a Shepherd direction was called for.

33. [121]

    The submission quietly ignores the much more potent evidence concerning the complainant’s DNA in the appellant’s underpants (where she was the major contributor).

34. [122]

    The inferences available to be drawn from the evidence in the trial were the subject of the usual directions, specifically in respect of circumstantial evidence, as set out above.

35. [123]

    In the words of Dawson J, it would have been unnecessary and confusing to give a separate direction as is now contended ought to have been given.

36. [124]

    Further, as was the case with respect to the directions the subject of Ground 2, any additional direction would have required attention to be drawn to the relevant evidence. For reasons that will appear when I deal with Ground 3, that would not have benefitted the appellant.

37. [125]

    I would reject Ground 4 of the appeal.

Rule 4

1. [126]

   Rule 4 of the Criminal Appeal Rules provides as follows:

2. [127]

   The application of r 4 has been the occasion of much discussion in this Court. It must be seen in the light of s 5 and s 6(1) of the Criminal Appeal Act 1912 (NSW). Section 5 and s 6(1) relevantly provide as follows:

3. [128]

   In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [72], McHugh J pointed out that, where objection has not been taken to a ruling or direction (or omission to direct in the terms contended for on appeal) no “wrong decision of law” for the purposes of s 6(1) has been identified or made. The obligation on this Court to set aside a conviction is not engaged, unless, under r 4, the Court gives leave to argue the ground notwithstanding the absence of objection.

4. [129]

   The issues raised by Grounds 2 and 4, not having been raised at trial, require leave under r 4. When regard is had to the manner in which the trial was conducted, and the real issues in the trial, it is quite apparent, for the reasons that have been given at length, that there was no call for either of the directions the subject of Grounds 2 and 4.

5. [130]

   Accordingly, on that basis, I would refuse leave under r 4 to argue those grounds.

6. [131]

   The authorities concerning the role of this Court in determining a ground that a verdict is unreasonable and cannot be supported by the evidence are legion: see, for example: Whitehorn v The Queen [1983] HCA 42; 152 CLR 657; Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326.

7. [132]

   I turn then to apply those statements of principle to the issues raised on behalf of the appellant in the present case.

8. [133]

   In written submissions essentially two points were made in support of this ground. The first was that inconsistencies in the evidence of the complainant were such as to demonstrate that the verdict was unreasonable. Reference was made to the complainant’s evidence that, when she was on her knees, the appellant was “standing to the side and then eventually he had to stand behind me like - keep my head there, you know”. This was contrasted with what the complainant had said in her interview of 9 May. In cross-examination she acknowledged that, in that interview, she had not said that the appellant was pulling her up before or when EZ was forcing his penis into her mouth.

9. [134]

   The second point made concerned the evidence of KL and LW, placing the appellant five metres away from the complainant and EZ. The submission was that it could not be said that the appellant was “actively participating in a joint criminal enterprise to sexually assault”.

10. [135]

    In support of the unreasonable verdict ground in relation to Count 2, four points were made on behalf of the appellant. They were:

11. [136]

    Counsel argued that the complainant’s evidence alone provided a sufficient basis for the success of this ground of appeal. He then turned to the DNA evidence, and submitted:

12. [137]

    That explanation arose from the appellant’s evidence that he had picked up the complainant’s shorts and underwear, that one of those items was wet, that he then dropped the clothes so that he could prevent the complainant from falling over, that he lay her flat on the rocks and again picked up her shorts and possibly her underwear. He said that he then told EZ to wait with the complainant because he (the appellant) was going to urinate. In cross-examination he said he some “very vague” recollection of urinating on the hill.

13. [138]

    Reference was made to the evidence of Ms Trabuio and Professor Boettcher, who agreed that DNA can be transferred from an item of clothing (particularly one that is moist) to the hand of a person who touches that item, and then from the hand to a body part (for example, a penis) if that body part is then touched with the hand.

14. [139]

    There are no material inconsistencies in the complainant’s accounts. The fact that, in her 9 May interview, she did not expressly mention that the appellant was “pulling her up” is of little significance.

15. [140]

    The record of the interview of 9 May was not in evidence. However, cross-examination revealed that it was a lengthy interview - at least 265 questions, 26 pages. It was made four days after the events in question; events which must, (even if the intercourse with EZ had been consensual) have been the cause of some trauma.

16. [141]

    The major inconsistency, if it were found, in the complainant’s accounts was that relating to the identification of the perpetrator of the second act of sexual intercourse. Not surprisingly, no reliance was placed upon that inconsistency.

17. [142]

    As to the second point, concerning the evidence of KL and LW, it seems to me that this evidence has been misunderstood. Clearly, what KL and LW observed took place before the complainant, EZ and the appellant went up the hill, where the two instances of sexual intercourse were said to have taken place. The evidence of KL and LW throws no light on what there happened.

18. [143]

    In my opinion, it was amply open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in relation to Count 1. For my part, having read the whole of the evidence, I am satisfied to the requisite standard that the appellant was present and participating in the offence committed by EZ, pursuant to an arrangement or agreement between them to commit such an offence.

19. [144]

    In this context, the DNA evidence needs to be subjected to more stringent examination than it has in the appellant’s submission. It will be recalled that, in contrast to other deposits of DNA, the evidence showed that the complainant was the major contributor to the DNA located in the appellant’s underpants. Even bearing in mind the evidence of the manner in which DNA can be transferred from one surface to another, it must be unlikely to a high degree that merely picking up an item of clothing, even if that item of clothing had DNA of the complainant on it, could transfer to the hand of the appellant, then to his penis, and then to his underpants, sufficient of the complainant’s DNA to constitute the major contribution of the DNA on the underpants.

20. [145]

    The DNA evidence is a powerful item of evidence in the Crown case. The absence of male DNA from the complainant’s vagina is explained by the evidence of Professor Boettcher that, once no sperm was detected, no further relevant investigations were undertaken, and by the evidence of Dr Rajendran concerning the lifespan of DNA in the vagina. Finally, although Dr Rajendran accepted that, ordinarily, it would be expected that a hymen would be ruptured by penile/vaginal intercourse, the complainant’s physiology was such that her hymen was thin, not prominent, and it was possible for penetration to take place without rupture.

21. [146]

    Having considered all of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence the subject of Count 2. I am, for my own part, also satisfied of that fact.

22. [147]

    I would therefore reject this ground of appeal. It follows that the appeal against conviction must be dismissed.

23. [148]

    Notwithstanding the language in which this ground is framed, the sole issue raised was parity with the sentences imposed on the co-offender, EZ. In Lowe v The Queen [1984] HCA 46; 154 CLR 606, Mason J (as he then was) stated the “correct principle” to be applied in cases of discrepancy in sentencing as follows:

24. [149]

    The principle was further explained by the High Court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 by Dawson and Gaudron JJ, as follows:

25. [150]

    As mentioned above, the appellant was sentenced to a total term of imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months. EZ was sentenced to a total term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 5 months. The difference in the head sentence is 21 months, in the non-parole period 10 months.

26. [151]

    In sentencing, Frearson DCJ, as he was obliged to do, had regard to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), and the ages of the two offenders.

27. [152]

    It is quite apparent that the sentencing judge was conscious of the question of parity in sentencing. The sole reason for the disparity was the difference in the ages of the two offenders. EZ was 15 years and almost 2 months at the time of the offending. The appellant was 17 years and almost 8 months - close to legal adulthood, as his Honour observed. Frearson DCJ recognised that EZ had been the initiator of the offences, and that the applicant “joined in”.

28. [153]

    He rejected a Crown submission that, given his age, the appellant ought to serve his sentence in an adult prison: see Children (Criminal Proceedings) Act, s 19.

29. [154]

    The submission made on behalf of the appellant is that it was not open to the sentencing judge to differentiate as he did on the basis of age. There was, it was submitted, “no considerable age difference”; such difference as there was, was “not so marked as to justify a significant disparity in sentence”.

30. [155]

    In response, the Crown relied upon the decision of McClellan CJ at CL (with whom Hall and Price JJ agreed) in KT v R [2008] NSWCCA 51; 182 A Crim R 571, and particularly the following:

31. [156]

    I would reject this ground. The age difference between the two offenders is considerable. It is true that EZ played the major role in the lead up to the commission of the offences, but once the offending behaviour was underway, the two were equal participants.

32. [157]

    While, in my opinion, it would have been open to the sentencing judge to have imposed on the appellant sentences more closely aligned with those imposed on EZ, the weight to be attributed to factors such as age was a matter for him: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]. The disparity is not such as to warrant the intervention of this Court.

33. [158]

    I would grant leave to appeal against the sentences, but would dismiss the appeal.

34. [159]

    WILSON J: I have read in draft the comprehensive judgment of Simpson J. I agree with her Honour’s conclusions and the orders that she proposes.

35. [160]

    The factual circumstances and relevant law have been set out in detail by her Honour and there is no need for any further dissertation on those aspects of the matter. I wish only to add the following in relation to grounds 1 - 4.

36. [161]

    The arguments advanced in support of grounds 2 and 4 were not matters raised before the trial judge. There was no complaint made by trial counsel about the directions that his Honour gave, and no request for any further or other directions to be given. This suggests that trial counsel saw no need for any other directions in the context of the trial as it was conducted before the jury. Rule 4 applies.

37. [162]

    Whilst this Court will always be alert to correct injustice regardless of the application of the rule, such is not the case here. The directions given by the trial judge were appropriate in the circumstances of the case; those given to the jury concerning joint criminal enterprise were in accordance with well settled law: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 and Tangye v R (1997) 92 A Crim R 545.

38. [163]

    In common with Simpson J. I would reject these grounds.

39. [164]

    As to grounds 1 and 3 they are, in my view, entirely without merit.

40. [165]

    The nature of the task of an appellate court in determining a claim that a verdict is unreasonable has been set out in the judgment of Simpson J. The court must independently assess the sufficiency and quality of the whole of the evidence and determine whether the evidence is such that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

41. [166]

    That task should be undertaken bearing in mind the advantage the jury had of seeing and assessing witnesses, an advantage not available to a court reviewing the evidence through the more opaque medium of a transcript. In a case such as this, where there were live issues of credit, not excluding the credibility of the appellant, the jury’s advantage was a significant one. Implicit in the jury’s verdict is an acceptance of the complainant’s evidence of essential matters to the requisite standard, and a rejection of the evidence given by the appellant.

42. [167]

    Having carefully reviewed the evidence before the Court, I consider the jury’s assessment of the evidence, and the verdicts that it returned, were well open to it.