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  • Writer's pictureGeoff Harrison

Inconsistent Verdicts & Anti-Tendency Direction

Updated: Oct 12, 2023


Criminal Barrister, Criminal Lawyer, Trials, Criminal Trial

Published by Geoff Harrison | 24 August 2023


Principles relating to Inconsistent Verdicts:


As discussed by Chen J in Ngo v R (below) at [184] - [185] factual inconsistency imposes a test of logic and reasonableness; the test is essentially whether the two verdicts can stand together:


Inconsistency can be legal (or technical), or factual. The present case involves suggested factual inconsistency. In that situation, inconsistency of verdicts, as a ground of appeal, imposes “a test of logic and reasonableness”: the Court must be satisfied that the two verdicts cannot stand together: Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366; [1996] HCA 35 (‘Mackenzie’). Inconsistent verdicts render the resulting convictions unsafe or unsatisfactory; they are “unreasonable, or cannot be supported, having regard to the evidence”: s 6(1) of the Criminal Appeal Act.


Some further principles should also be noted about factual inconsistency. First, conviction on one count on an indictment, with an acquittal on another (or others) does not, without more, demonstrate inconsistency: Ganiji v R [2019] NSWCCA 208 at [13]. The position is not otherwise in instances of differing verdicts from multiple counts of sexual offending involving the evidence of one witness: Cullen v R [2022] NSWCCA 63 at [66]. Secondly, it has been emphasised that an appellate court should not too readily assume inconsistency where there are mixed verdicts, as “mixed verdicts arise from the burden and standard of proof, the requirement of separate verdicts and the role of the jury”: Bussey v R [2020] NSWCCA 280 at [61]. Thirdly, if there is a “proper way” to reconcile verdicts, by allowing an appeal court “to conclude that the jury performed their functions as required, that conclusion will generally be accepted”: Mackenzie at 367. Fourthly, “the obligation to establish inconsistency of verdicts rests upon the person making the submission”: Mackenzie at 368. Thus, in order to succeed on this ground, the applicant is required to establish inconsistency between the verdict on count 2, and the verdicts on counts 4 and 5.


Anti-Tendency:


As discussed by Adamson J at [98] an Anti-Tendency Direction is:


.....a direction to the jury that they are not to use certain evidence for a tendency purpose: that is, they are not to reason that because the accused did x, he or she is more likely to have done y or that the accused is the type of person who, having done x, would do y. The reason such a direction is given is that evidence can only be used for a tendency purpose when the criteria in s 97 of the Evidence Act have been met (the notice requirements and a ruling that the evidence has “significant probative value”). Section 95 prohibits use of otherwise relevant evidence for a prohibited purpose (such as a tendency purpose) if it has not been admitted for that purpose.


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Cases:

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Ngo v R [2023] NSWCCA 201 (22 August 2023)


Court of Criminal Appeal


Supreme Court

New South Wales

Case Name:

Ngo v R

Medium Neutral Citation:

[2023] NSWCCA 201

Hearing Date(s):

19 May 2023

Decision Date:

22 August 2023

Before:

Adamson JA at [1]; Ierace J at [116]; Chen J at [148]


Decision:

(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.


(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).


(3) Dismiss the appeal.


Catchwords:

CRIME — conviction appeal — where applicant acquitted of three sexual offences but convicted of a further three sexual offences — whether verdicts returned by the jury were inconsistent


CRIME — conviction appeal — admission of evidence of “bad character” of applicant — whether trial judge should have made an anti-tendency direction — application to discharge jury made and denied in course of trial — anti-tendency direction not requested by applicant’s trial counsel — whether failure to give direction led to miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HE, 61E, 61L, 112


Criminal Appeal Act 1912 (NSW), ss 5, 6


Criminal Procedure Act 1986 (NSW), ss 161, 294, 294AA


Evidence Act 1995 (NSW), ss 95 , 128, 191


Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15


Cases Cited:

AH v R [2019] NSWCCA 152


Booth v R [2022] NSWCCA 113


Browne v Dunn (1893) 6 R 67


Bussey v R [2020] NSWCCA 280


Cullen v R [2022] NSWCCA 63


Ganiji v R [2019] NSWCCA 208


Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194


KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11


Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35


Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1


MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53


R v Meher [2004] NSWCCA 355


R v Murray (1987) 11 NSWLR 12


R v Tangye (1997) 92 A Crim R 545


R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151


Soames v R [2012] NSWCCA 188


Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42


Category:

Principal judgment

Parties:

Sang Ngo (Applicant)


Rex (Respondent)

Representation:

Counsel:


G Lewer / A Faro (Applicant)


D Scully (Respondent)


Solicitors:


Veronica Love Lawyer (Applicant)


Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/114647

Decision under appeal:


Court or Tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 November 2021

Before:

Arnott SC DCJ

File Number(s):

2020/114647


HEADNOTE


[This headnote is not to be read as part of the judgment]


Sang Ngo (the applicant) was charged with three counts of intentionally carrying out a sexual act – namely, masturbation – towards the victim without her consent and knowing that she did not consent contrary to s 61KE(a) of the Crimes Act 1900 (NSW) (counts 1, 2 and 3), two counts of sexual assault contrary to s 61L of the Crimes Act (counts 4 and 5) and one count of breaking and entering a dwelling in circumstances of aggravation (knowing that a person was present) contrary to s 112(2) of the Crimes Act (count 6). The applicant was found guilty of counts 4, 5 and 6 by a jury.


The applicant and the complainant were in an intimate relationship between October 2019 and March 2020. The relationship was turbulent, and they often argued. On four occasions, police were called to the complainant’s flat, where the applicant would often stay, in the course of or following them arguing. After an incident in March 2020, the applicant was subject to an AVO. He nevertheless remained in contact with the complainant. The events subject of the counts occurred in April 2020.


In relation to counts 4 and 5, the complainant gave evidence that she repeatedly told the applicant to stop masturbating in front of her in her bedroom (the alleged conduct subject of count 3), which he ignored. She stated that he then forced her onto the bed, digitally penetrated her and had penile-vaginal sex with her. She had told him to stop and tried to move but felt that she could not fight back.


In relation to count 6, the complainant’s evidence was that, following these events, when the applicant fell asleep, the complainant looked at his phone and found that he had been talking to another woman. She took the phone and hid it. When he awoke on 15 April 2020, the applicant became angry and aggressive, and left the flat. He came back later to get the phone off her, including by endeavouring to enter through a window as the front door was locked. He returned the next day, 16 April 2020, and the complainant gave him his phone back. She then locked the door. Later that day, when the complainant was still at home, the applicant came back again, banged on the door and broke through. The applicant’s evidence was that, on 15 April 2020, after pleading for the complainant to return his phone to him in her apartment, he stormed out through the front door, causing the lock and chain to break from the doorframe. He stated that it was an accident. He denied going on the premises on 16 April 2020.


The defence case at trial was that the applicant had consensual sex with the complainant and that he had accidentally damaged the door when leaving the flat on 15 April 2020. The essential submission made on behalf of the applicant was that the evidence of the complainant should not be accepted because she was not a credible witness.


The applicant sought leave to appeal against his conviction on three grounds: first, that the verdicts of guilty on counts 4 and 5 are inconsistent with the acquittal on count 2, secondly, that the admission and use of the evidence of the applicant’s bad character resulted in a miscarriage of justice and, third, that the failure to give a direction in accordance with s 95 of the Evidence Act 1995 (NSW) (an anti-tendency direction) resulted in a miscarriage of justice.


The Court held, dismissing the appeal:


Ground 1 (Chen J, Adamson JA and Ierace J agreeing):


(1) The ready explanation for the acquittal on count 2 is that the jury considered the matters advanced in connection with Exhibit 3 (a photograph of the complainant in her underwear said to have been taken after the alleged offending conduct) to create sufficient doubt as to the guilt of the applicant in relation to this count. It would not be open to suggest that such a process of reasoning would be illogical or the product of the jury failing to adhere to its task. Rather, it provides the basis for confidence that the jury has considered each count separately on the evidence relevant to that count: [198], [211] (Chen J).


Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366; [1996] HCA 35, applied.


AH v R [2019] NSWCCA 152 at [62], applied.


(2) The complainant’s evidence in connection with lack of consent in relation to counts 4 and 5 (and the applicant’s knowledge of this) was clearer and appreciably stronger than the evidence on count 2. This provides a further basis to differentiate, and provides a plausible explanation for, the verdicts: [207]-[208] (Chen J).


Grounds 2 and 3 (Adamson JA, Chen J agreeing)


Adamson JA


(3) The Crown is not required to adopt all the evidence of each of the prosecution witnesses as part of its case or obliged to put propositions in accordance with such evidence to an accused in cross-examination. The prosecutor therefore had no obligation to put to the applicant in cross-examination those matters of bad character about which the complainant had given evidence which did not form part of the Crown case: [95]-[96].


Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674; [1983] HCA 42, applied.


(4) It can be inferred that the fact that the applicant’s trial counsel did not seek an anti-tendency direction reflected a legitimate forensic choice to give no credence to the possibility that the applicant was violent or behaved badly towards the complainant, given the substantial challenge to the complainant’s credibility on which the defence case was based. Therefore, a lack of direction did not give rise to a miscarriage of justice. The same could be said of the applicant’s trial counsel failing to object to the admission of the complainant’s evidence of the applicant’s bad character and her failure to seek a direction that the jury disregard it: [109]-[110].


Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194, distinguished.


Ierace J


(5) It did not occur to either counsel or the trial judge that an anti-tendency direction was required. It appears that both counsel proceeded on the basis that the extraneous allegations should not be further pursued or highlighted. It does not necessarily follow that a mix of acquittals and convictions demonstrates that the jury did not take the extraneous allegations into account in arriving at convictions for the last three counts. Therefore, the absence of an anti-tendency direction caused a substantial miscarriage of justice: [145]-[147] (Ierace J).


Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194, distinguished.


JUDGMENT


1. ADAMSON JA: Sang Ngo (the applicant) seeks leave to appeal against his convictions on counts 4, 5 and 6 following a trial by jury in the District Court over which Arnott SC DCJ (the trial judge) presided.


2. The applicant was tried on indictment and charged with six counts as follows:

(1) he intentionally carried out three sexual acts (masturbation) without the complainant’s consent on 11 or 12 April 2020 (counts 1 and 2) and 14 April 2020 (count 3);

(2) he twice had sexual intercourse with the complainant without her consent and knowing that she did not consent on 15 April 2020 (counts 4 and 5); and

(3) he broke and entered the complainant’s dwelling house in circumstances of aggravation (knowing that a person was present) on 16 April 2020 (count 6).


3. The conduct alleged in these charges arose from a relationship between the applicant and the complainant who were, at the time, aged 30 and 31 respectively. It was an agreed fact that the complainant met the applicant in January 2019. They were in an intimate relationship between October 2019 and March 2020. During their relationship the applicant would often stay at the complainant's residence which was a granny flat in Smithfield.


4. The jury, at the conclusion of a trial, returned verdicts of not guilty in respect of counts 1, 2 and 3 and guilty in respect of counts 4, 5 and 6.


The grounds of appeal


5. The applicant seeks leave to appeal on the following grounds:

“1. The verdicts of guilty on counts 4 and 5 are inconsistent with the acquittal on count 2.

2. The admission of evidence of the applicant's bad character, the failure to cross-examine the applicant about it, its use by the Crown Prosecutor in address, and the absence of direction about it resulted in a miscarriage of justice.


3. The failure to give a direction in accordance with s.95 of the Evidence Act resulted in a miscarriage of justice.”


6. As none of these grounds involves a question of law alone, leave to appeal is required: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).


7. I have had the benefit of reading the reasons of Chen J in draft and agree with his Honour’s conclusions with respect to ground 1, largely for the reasons given by his Honour. I gratefully adopt his Honour’s summary of the counts and the evidence.


8. In addressing grounds 2 and 3, it is necessary to set out in some detail the way in which the trial was conducted and the jury directed because this background is germane to the determination of the question whether there was a miscarriage of justice as alleged in each of those grounds. What follows is not a complete summary of the evidence given. Rather, I have endeavoured to highlight the evidence which was relied on by Ms Lewer, who appeared for the applicant in this Court, as amounting to evidence of the applicant’s bad character and warranting a direction under s 95 of the Evidence Act 1995 (NSW) (an anti-tendency direction).

Pre-trial rulings and agreed facts


9. As the relationship between the applicant and the complainant had been tumultuous and had given rise to several Triple-0 calls to police before the conduct alleged in the counts, there was an issue about how to deal with evidence of the relationship between the parties other than as alleged in the counts. Further, for the purposes of impugning the complainant’s credit, the applicant wanted to rely on the circumstance that the complainant had, on 8 March 2020, signed a police statement saying that he had slapped her on that day, but signed a further police statement on 12 March 2020, saying that he had not done so. Ultimately, the parties resolved to agree on facts, which, pursuant to s 191(2)(b) of the Evidence Act, would have the effect of prohibiting evidence being adduced to contradict or qualify the facts, without leave.


10. The following table (which forms part of the agreed facts set out in a document marked Exhibit A in the Crown case) sets out incidents which were followed by Triple-0 calls made to police either by the applicant or the complainant:


Date

Incident Details

Action Taken

1. EVENT REFERENCE NUMBER E 72898630

9 February 2020

Ngo and [the complainant] were cooking dinner when an argument ensued. During the argument [the complainant] was holding a butter knife. Ngo told [the complainant] to leave which she did. [The complainant] then regained entry through a bedroom window, [the complainant] called police and left the premises to wait for the police to arrive. Police arrived and Ngo told police [the complainant] was holding a butter knife but did not threaten or intimidate.

Police spoke to Ngo and found no offences occurred. Police happy to let both parties remain in the premises.


2. EVENT REFERENCE NUMBER E 73485344

24 February 2020

Argument over money ensued in the kitchen of the residence. Ngo called police and told them that he and [the complainant] were having an argument, that [the complainant] had become violent and that he had pinned [the complainant] down in an attempt to stop her hitting him. [The complainant] attempted to make Ngo leave by pushing with no success. Ngo wanted to collect some belongings.

[The complainant] contacted her Family and Community Service worker and said Ngo gained access and slapped, grabbed and shoved her and that she locked herself in and he was trying to break in. Police arrived with Ngo still outside the property and [the complainant] still inside arguing.

Police obtained details from both parties and were unable to determine who was at fault. Both parties refused to provide statements and [the complainant] only wanted Ngo to leave the premises. Ngo was moved on from the location and no further action taken.


3. EVENT REFERENCE NUMBER E 73809707

25 February 2020

At about 9:30pm Ngo attended [the complainant]’s residence to collect some belongings. Ngo knocked on the door with no answer. [The complainant] was with her daughter in the back room and did not hear the knocks. Ngo entered the property through a window because he did not have a key. [The complainant] upon leaving the back room saw Ngo and became frightened. [The complainant] called 000.

Police attended the residence. Enquired as to damage, threats or violence – [the complainant] confirmed none of the above occurred. Police spoke to Ngo who told them he wanted to get his things and discuss money. Ngo advised that he had climbed through the window a number of times because he did not have a key. Police left without incident.


4. EVENT REFERENCE NUMBER E 73569111

4 March 2020

Verbal argument between Ngo and [the complainant] about Ngo’s trust issues. [The complainant] stated that she only wished to have a friendship relationship, but Ngo was adamant about maintaining their previously intimate relationship. [The complainant] contacted 000 and Ngo left without incident.

Police attended the residence and ascertained the argument was only verbal in nature and no offences were committed. [The complainant] informed police that she no longer wanted Ngo to reside there. Police said they would speak to Ngo and inform him. Police spoke to Ngo in regard to the above and Ngo said he would not return to the address “if I’m not wanted”.


11. The agreed facts also included the following:

“5. The accused was charged with domestic violence offences against the complainant on 8 March 2020 and an Apprehended Domestic Violence Order was put in place on 13 March 2020. The conditions of that order were:

a. That the accused must not assault, threaten, stalk, harass or intimidate the complainant or intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the complainant;


b. That the accused must not approach the complainant or contact her in any way, unless the contact is through a lawyer; and


c. That the accused must not go within 100 metres of any place where the complainant lives, works or 38 Neville Street, Smithfield.

...

8. A record of calls made by the accused and complainant is included in Annexure A [which set out a total of 562 calls made between the applicant and the complainant during the period from 9 March 2020 until 18 April 2020].”


12. During the course of the trial, it was also agreed between the parties (in answer to a jury question) that the police had applied for the Apprehended Violence Order (AVO) on behalf of the complainant and that this was standard procedure in cases where there has been a domestic incident.


13. There was also pre-trial argument about the limits to be placed on cross-examination of the complainant and the circumstances in which the prosecutor could lead evidence of the applicant’s bad character (if the applicant gave evidence, which he did). The trial judge made the following rulings (to which there was no challenge):

(1) the applicant’s trial counsel could cross-examine the complainant about having sex in his car when she went to his home to return his PlayStation, after the Apprehended Violence Order was put in place in March 2020, as well as other occasions on which they were intimate between 8 March 2020 and 16 April 2020;

(2) if the applicant’s trial counsel adduced evidence about the complainant’s drug-taking (to establish the subject matter of the arguments between the complainant and the applicant), the prosecution may be permitted to adduce evidence of the applicant’s bad character, if he gave evidence; and

(3) the applicant’s trial counsel could not adduce evidence about the complainant being a sex worker although she was permitted to suggest to the complainant in cross-examination that they argued because he had suspicions about infidelity.


The Crown case


The complainant’s evidence


14. The complainant was the principal witness in the Crown case. The only other prosecution witnesses were two police officers. The complainant gave her evidence remotely and was, at times, difficult to understand. Although her English was good, it was her second language. She did not give evidence through an interpreter. This led to some uncertainty about what she had actually said in places where the court reporter had noted “not transcribable” on the transcript. It also led to directions being given to the jury based on the agreement of counsel as to what had been said or what might have been said (which are referred to below). This is relevant to the applicant’s unsuccessful application for the jury to be discharged (which is not the subject of a ground of appeal) as well as to the evidence of the applicant’s bad character, which are central to grounds 2 and 3.


15. Further, the complainant’s answers were not always responsive, particularly during cross-examination. Thus, although it was accepted that she had been instructed by the prosecutor not to mention certain matters, she did not abide by those instructions.


The relationship between the applicant and the complainant up to February 2020


16. The complainant was the first witness in the Crown case and was called on the second day of the trial, 17 November 2021. The complainant gave evidence that she met the applicant in about January 2019 and started to have a relationship with him in October 2019. At that time, the applicant arranged for the complainant to work at his sister’s restaurant in Camden. She said that the relationship ended in February 2020. The following exchange is recorded as having taken place:

“Q. Why were you ending the relationship with [the applicant]?

A. He is not worth it and too many fighting - so many affair that he having with another girl. And assaulting me at the restaurant sometimes, as well so.


Q. So, you said insulting you at the restaurant. What was he doing?


A. He keep pinching my - my - my skin and keep swearing at me and telling off in front of the customer and other worker.”


[Emphasis added.]


17. The complainant said that, although they had broken up, the applicant still came around to see her. She said that sometimes he would be “normal” and at other times he was “kind of, aggressive and he’d, like, just want to get back with me, but then, I still tell him to give me a time and I didn’t mean to want to go back to the relationship”.


The events of 8 March 2020 (which led to the AVO)


18. The complainant was asked whether the police came around to her granny flat on various occasions in February and March 2020 (which were the subject of Exhibit A). When asked what happened on 8 March 2020, she said that the applicant took her phone as he did not want her to call the police, and she tried to grab it back. The applicant started pushing her and punching. She accidentally scratched his leg, and he tried to slap her face, and there was some “fooling around”, which left her with a red mark and a scab on her face. She took the applicant’s phone and ran out and he followed. They eventually returned to the flat and calmed down, and the applicant left. She confirmed the applicant had slapped her face twice during the argument and that she had spoken to police and gave them a statement about what had happened. She said that in the ensuing days, she felt sorry for him because he had told her that if he was charged he would go to gaol. She encouraged him to go to the police with her and said that she would withdraw what she had said about him slapping her. The complainant agreed that she had retracted what she had said in her statement of 8 March 2020 that the applicant had slapped her on 8 March 2020.


19. In the absence of the jury, the complainant was given a certificate pursuant to s 128 of the Evidence Act before she was asked whether her retraction was true. She said that the retraction was not true but that she had made it because she wanted to give the applicant a second chance.


20. Shortly after evidence was given about the 8 March 2020 incident and the associated AVO, the trial judge gave the jury an anti-tendency direction as follows:

“... The granting of such an [AVO] is a standard procedure when there is an allegation made by a party against another of a domestically violent nature. The direction I give you is as follows. You are not to reason that because such an order was made against the accused, that he is guilty of any of the offences alleged in the indictment.

... You cannot act on the basis that the accused is likely to have committed the offences charged, because you’ve heard that an [AVO] was made against him. That is not the reason the evidence was placed before you...


The evidence about that has a limited purpose, namely, to explain the background to the relationship between the accused and the complainant. The fact that an apprehended domestic violence order was put in place on 13 March 2020 cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges on the indictment have been proved beyond reasonable doubt.”


Postulated reference in the complainant’s evidence to the applicant being on drugs


21. After the luncheon adjournment, the applicant’s trial counsel, in the absence of the jury, raised that the complainant had said in one of her answers that the applicant was “on drugs”. The prosecutor confirmed that she had heard the complainant say that the applicant “looked like he was on drugs”. The trial judge identified the need for a direction but said that he was having trouble understanding what the complainant was saying and would like to look at the transcripts. The transcript does not record that either of these pieces of alleged evidence was actually said, although a direction was ultimately given by the trial judge (in the form agreed by the parties) to address the possibility that one or more of the jurors had heard what counsel thought had been said.


The complainant’s evidence about the applicant referring to her as a prostitute


22. When the jury returned, the complainant continued to give evidence about the counts, in the course of which she said that the applicant had told her that she was a prostitute and she had said that she told him that she was not a prostitute.


The complainant’s evidence about the applicant attending Green Valley Police Station


23. The complainant also said, on three occasions, that the applicant left her place and went to the

Green Valley Police Station (this was relevant to the applicant’s unsuccessful application to discharge the jury, which will be referred to below).


The jury’s request for the transcript


24. On the morning of the third day, before the cross-examination of the complainant commenced, the jury sent a note asking for the transcript of the complainant’s evidence. The jury’s request for a transcript was deferred until the parties could agree on certain issues relating to the transcript.


The complainant’s cross-examination


25. The applicant’s trial counsel began her cross-examination of the complainant in the morning of the third day of the trial, 18 November 2021.


Cross-examination of the complainant about the incident on 8 March 2020


26. The complainant was asked about the incident on 8 March 2020 when the applicant took her phone. She was asked whether she got her phone back from him, to which she gave a very unresponsive answer, which included the following:

“A. However, because I have to talk on my phone because I need to use a phone for emergency, escaping - if he done something wrong, because he done a lot of physically hurting me in the bus, which is before 8 March, where the police were involved so many times. I didn’t want to put up with this. And because I was so nice, I - not - so - the - the people I knew, using it against me, because he knew that. That is my business, but he chew my finger. And he used to call me so many times. And that’s the reason why I moved on and I stand up and I report every single act done to my - in my - to myself and to my daughter. My daughter's..(not transcribable)..so much when he keeps swearing, yelling, screaming. And myself. So today is a best chance for me to tell every - his behaviour. And to‑‑

Q. I'll just move on.”


[Emphasis added.]


Cross-examination about the car incident on 17 March 2020


27. The applicant’s trial counsel cross-examined the complainant by reference to the phone calls set out in the annexure to Exhibit A, which led the complainant to agree that by about 17 March 2020, she and the applicant were “reconciling”. She was questioned about an occasion when she drove to the applicant’s parents’ place and parked around the corner “after he was released from Fairfield Court” (which related to the AVO made on 8 March 2020). She was intending to lend him her PlayStation. The complainant said that the applicant came to her car to pick up the PlayStation and brought her food. The following exchange occurred:

“Q. You have sex with him in the backseat of your car.

A. He forced me to, he said..(not transcribable)..


Q. I put it to you, ma’am, he never forced you--


A. He--


Q. --you had consensual sex with him.


A. No, it was at that day I just really going there and give him the PlayStation, but however, he tried to make me do that..(not transcribable)..but that's the reason why I didn't want to sex with him, but I did admit I had sex with him in the back of car.


Q. I'm saying to you it was consensual sex, what do you say?


A. It’s not consensual sex.


Q. You never told the police about this, did you?


A. I..(not transcribable)..so I didn't want to mention that.


Q. Now, from that point on, you and the accused spent more time in each other’s company, do you agree with that?


A. I agree.”


[Emphasis added]


28. The applicant’s trial counsel continued to take the complainant through the phone calls set out in the table annexed to Exhibit A. The complainant agreed that she and the applicant were in regular contact with each other between 8 March 2020 and 16 April 2020.


Discussion in the absence of the jury about a reference to the applicant drugging the complainant


29. Before the luncheon adjournment on 18 November 2021, in the absence of the jury, the applicant’s trial counsel raised the issue of the complainant having said that the applicant drugged her, although she had not heard it herself (it had apparently been confirmed by others at the bar table although the transcript does not reveal that it was actually said). The trial judge confirmed that he had not heard it either but that, once the transcript was prepared, they could review it to consider how to address it.


Cross-examination of the complainant about her delay in reporting the conduct the subject of counts 1-6


30. When the cross-examination of the complainant resumed, the applicant’s trial counsel put to her that she could have reported the applicant to police after any of the events the subject of the counts (because he would have been in breach of the AVO) but that she did not and that she did not report the conduct the subject of the counts until August 2020. The complainant agreed that this was the case but said, in effect, that she eventually had to say something to move on from the events. In further cross-examination about this occasion, the complainant said that she had discovered that the applicant was telling all his friends that the complainant was “cheating” on him because she was a prostitute.


Further cross-examination about count 5 (15 April 2020)


31. The applicant’s trial counsel cross-examined the complainant to the effect that after he had allegedly forced her to have sex with him on 15 April 2020, the first thing she had done was to check his phone to ascertain whether he was cheating on her. The following exchange ensued:

“Q. What I'm saying to you, ma'am, is that after you’d had sex with him, you believe that he was cheating on you, and that's what made you upset about having just had sex with him.

A. No. If I’m – if I’m do upset about he have sex with me and then he cheat on me. What I do, I wouldn’t call the police right away to arrest him. That's not – that’s how the normal woman would do. But because I believe absolutely I need to leave the relationship peaceful and quietly without him chasing me down. So that's the reason why I just wanted to control so slowly and silently outside without being put into the trouble. Because at the end I still care for him, but he never care for me. And that's one of the reasons why I got so disappointed. And yeah.


Q. Ma’am, it's the case, isn't it, that you felt that he was using you for sex? That's what you felt.


A. That’s what I feel. That’s exactly how he using me. From the top to the bottom, from the beginning to the end, he always cheating me, that a fact. That my decision, that’s not my feeling.”


The issue whether the complainant had mentioned that the applicant was in custody (raised in the absence of the jury)


32. Following this evidence, there was a short adjournment, in the course of which the applicant’s trial counsel said:

“Just before the jury come in, there was another piece of information given by the complainant where she said my client would be released from custody soon. I think, if I may, your Honour, I’ll just add to the list of issues. I just wanted to mention it. I’ve mentioned it to the Crown.”


33. The trial judge and the prosecutor confirmed that neither had heard anything of that nature said. The applicant’s trial counsel said that she and “the solicitors” had heard it. The transcript does not record that any such statement was made, although there was a reference to the applicant being released from Fairfield Local Court, which I take to be a reference to 8 March 2020 and which was contained in the applicant’s trial counsel’s question.


Resumption of cross-examination of the complainant about count 5 (15 April 2020)


34. After the short adjournment, the applicant’s trial counsel continued questioning the complainant about her conduct after the alleged sexual assault on 15 April 2020 (her taking his phone, checking it for evidence of infidelity and taking photos of him begging for the return of his phone). The complainant agreed that the applicant left her granny flat at about 9pm on 15 April 2020 and that she retained his phone.


Cross-examination of the complainant about count 6 (16 April 2020)


35. She said that on 16 April 2020, the applicant returned with food from his mother and some plants. She was washing dishes in the kitchen. He asked for his phone and she gave it to him. She said that she asked him to leave but he did not leave because he wanted to stay and talk. When she asked him again to leave, he “make [her] house become a mess”. The complainant called her aunt and asked her to call the police for her. The applicant then said that he would leave and that there was no need to call the police.


36. Subsequently, the applicant returned and asked the complainant why she had changed the SIM card in his phone. He was at that time “very aggressive”. The following exchange ensued:

“Q. Then he got the original SIM card that you gave him, and he swapped it back again. Do you agree or disagree?

A. For that moment, I can’t recall the memory for that reason because I was in fear, both extremely shocking and in fear, because I don't know what the next moment of my life would be.


Q. I’ll put it to you, ma’am, he never threatened to kill you at any stage of your relationship. Do you agree or disagree?


A. I disagree.


Q. I'm just saying to you, your taking of the SIM card, that's you trying to gather more evidence about his cheating. Do you agree or disagree?


A. I disagree.


Q. After, I say, Mr Ngo got his SIM card back, he cut up some fruit. Do you agree with that?


A. Yep. But also, first of all, he means for me to calm down.


Q. You were lying down. And I believe that fruit was like guava with some chilli on it. Does that sound right to you?


A. That's right.”


[Emphasis added.]


Cross-examination of the complainant about the police visit on 16 April 2020 (after count 6)


37. he applicant’s trial counsel asked the complainant about the timing of the police visit in the following exchange:

“Q. Anyway, then, all right. I just want you - do you recall that the police come and speak to you around about - I think it's about 2.15 to 2.30?

A. No, no, no, no. Not the police come talk to me. The police come to his place to do the checking, I think, because he's on the high risk offender thing. High risk offender - yeah. So that's why they come to his place. And then his dad calling him to go home and - yeah. And I'm not sure about that because I overheard the conversation between him and his dad over the phone. So I don't - I don't know exactly what happened on the phone. I only what exactly he respond back to the phone receiver into the‑‑


Q. All right. Thank you. All right. Just stop you there. ...”


[Emphasis added.]


Cross-examination of the complainant about the photograph taken on 13 April 2020 (between count 2 and count 3)


38. he complainant was also cross-examined about the photograph which the applicant had taken of her which was marked Exhibit 3. The following exchange occurred:

“Q. What I'm saying to you is, in this photo, you appear to be at ease, in your room, with the accused. Do you agree or disagree?

A. I disagree, in one sentence, which is, I didn't know [the applicant] was in my room on the 13th of April. When I turned around, I was shocked, because this part of the room is - was having the door on my left-hand side, when I do decoration, and I'm been doing from the top, you just can’t see that. He took the photo of me, without my face, which is mean, he didn’t camera out and took a photo of me when I’m doing something else. That’s mean, I wasn’t consent, and then that’s mean, he breach of my privacy. I can show you for this reason, and I would like further statement, from now on, to the police, for another allegation, that he done it to myself and my daughter...(not transcribable)..


Q. I’ll just move on. ...”


[Emphasis added.]


Further evidence given in the complainant’s cross-examination of assaults on 29 March 2020


39. The complainant was also cross-examined about text messages she had sent to the applicant on 15 March 2020 and 29 March 2020 in which she accused him of infidelity. The following exchange ensued:

“Q. Just turning over the page to 29 March 2020. ‘Why you treat me so bad? You cheated on me and even falsely accused me’, and then, ‘Stop, enough, Sang, don't make me more anxious about your behaviour.’ Then the message is repeated, again, at the bottom. So, you and the accused were still having trust issues as of 29 March 2020. Do you agree or disagree?

A. I disagree for the trust. Because I asking him, ‘Why you treat me so bad?’ It’s about he hitting me every time we have argument, and the hitting part is the principle..(not transcribable)..that on the 29th of March, and that’s the day he actually, first time ever, forced me have sex with him, which is I never bring it up until the statement.”


[Emphasis added.]


40. The complainant agreed that the allegation of “hitting” was not in her police statement but denied that she was “making it up in [her] evidence”.


The complainant’s evidence in cross-examination that the applicant had taken money from her and her daughter and that he had taken her car


41. In an answer to a subsequent question, the complainant said that she was not only upset with the applicant because he was “cheating on [her]”, but also because he “took [the complainant’s and her daughter’s] money”. When it was put to her that this was not in her police statement, she said that she had told the “police everything” although she would have taken “years” to tell them what had happened on “every day” of their relationship. Subsequently, the complainant said that she rang the applicant because he had taken her car. She agreed that this allegation was not in her police statement.


Re-examination of the complainant


42. In re-examination, the complainant confirmed that when she had said that the applicant had slapped her on 8 March 2020 she was telling the truth and that she had made another statement on 12 March 2020 saying that he had not done so because she wanted to give the applicant a second chance. She said that the evidence she had given at the Fairfield Local Court on 17 November 2020 that he had slapped her was true.


The applicant’s application for discharge of the jury


43. At the end of her cross-examination of the complainant, and in the absence of the jury, the applicant’s trial counsel foreshadowed an application to discharge the jury in the following terms:

“If this matter ends up going somewhere else, which may or may not happen, I would be very concerned that I hadn’t made an application because I am very concerned that the jury may think that my client is a high‑risk domestic violence offender. He is not, as I understand it, so there’s that issue. She continually comes up with other allegations, especially today. That is also problematic, and now she’s said that ‘He’s done something to me and my daughter which I haven’t told anyone about,’ so we’ve got this continual value adding to her evidence.

As I understand it the Crown has spoken to the complainant and said to her that she’s not to mention certain things, in particular the drugs, the bail and the prostitution. Of course, that appears to have had no effect on the complainant. Having said all of that, my next concern is in regard to the complainant. It seems no matter what she is told she still gives evidence and says things against the accused which she’s been told not to say, as I’ve indicated earlier, and it’s my belief and possibly only my belief but she will continue to do this.”


44. Before hearing the application, the trial judge requested that the applicant’s trial counsel prepare a list of transcript references which formed the basis of the application.


The list of transcript references in support of the application for discharge


45. At the commencement of the fifth day of the trial (22 November 2021), the applicant’s trial counsel went through her “list” of transcript references to support her application (Voir Dire Exhibit 11).


46. The list comprised the following evidence given by the complainant:

(1) the applicant assaulted her by pinching her at the restaurant;

(2) the applicant called her a prostitute to her face and told others that she was a prostitute;

(3) the applicant had to go to Green Valley Police Station;

(4) the applicant had sexual intercourse with her in the back of her car after she delivered the PlayStation to him;

(5) none of the sexual activity he had with her was consensual except if he drugged her (this was not recorded on the transcript but counsel agreed that it might have been said);

(6) she did not forgive him for anything he had done to herself or her daughter;

(7) he had, at some point, been released from custody (this was not located in the transcript but the parties accepted that it was possible that it was said);

(8) he took her SIM card (this did not feature in the submissions);

(9) the police came to check on the applicant because he was a high-risk offender;

(10) he hit her every time they had an argument and he first had non-consensual sex with her on 29 March 2020;

(11) he took money from the complainant and her daughter to pay the rent, took her sunglasses to sell them and borrowed her ring; and

(12) he (temporarily) took her car.


47. Many of these matters arose from what those present thought they had heard which required a comparison to be made with what was recorded on the transcript. Parts of the tape of the proceedings were replayed in order to obtain consensus on what was actually said. The trial judge also invited the response of the applicant’s trial counsel and the prosecutor to a proposed direction about the reference to the applicant being in custody.


48. The trial judge confirmed that the prosecutor joined in the applicant’s application for discharge of the jury (although the prosecutor had initially indicated that she did not propose to make submissions). The trial judge refused the application for discharge. Having discussed the directions which could be given to remedy the issues raised by the applicant’s trial counsel, his Honour confirmed that there were only two matters (the applicant’s custody and the reference to drugs) that required a direction “at this stage”, with which the applicant’s trial counsel agreed.


49. After the application for discharge had been refused, the applicant’s trial counsel also referred to the reference to the applicant being a “high-risk offender” but said that that could be addressed by asking one of the police officers who was to be called in the prosecution case to confirm that he was not on such a list.


50. When the jury returned, the trial judge gave a detailed and firm direction that, even if the words “just look like he on drugs at the time” were said by the complainant in a portion of the transcript which is marked “untranscribable”, the jury should completely ignore it as there was no evidence that the applicant was on drugs.


51. The trial judge also directed the jury, in similarly detailed and firm terms, that although they may not have heard it and it does not appear in the transcript, both counsel believe that the complainant may have said that the applicant was in custody. The trial judge directed them to disregard the fact that he was denied bail because it was not relevant to the issues which the jury was required to decide.


The balance of the Crown case


52. The prosecutor called Senior Constable Spalding from the Fairfield Police Station who confirmed that the applicant had been arrested on 16 April 2020 and taken to the police station where he participated in an Electronically Recorded Interview of Suspected Person (ERISP). Constable Tanisha Riley confirmed in her evidence that the applicant was not on the High Risk Offenders List. The ERISP was played to the jury in the course of her evidence. She was cross-examined briefly about the dates on which she spoke to the complainant, being 17 June 2020 and 4 August 2020.


The defence case


53. The defence case began at about 3.30pm on 22 November 2021 (the fifth day of the trial). The applicant’s trial counsel did not open the defence case (although she had taken the opportunity after the Crown’s opening on the first day to inform the jury what was in dispute). The applicant gave evidence. His evidence included denials of the masturbation charges and that all the sex between them was consensual. He denied that he ever referred to the complainant as a prostitute, either when he was having sex with the complainant or otherwise.


54. The prosecutor cross-examined the applicant but did not cross-examine him about the “additional” matters about which the complainant gave evidence (this formed part of ground 2).


55. On the morning of 23 November 2021 (the sixth day of the trial), the trial judge delivered oral reasons for refusing the discharge application, following which there was a discussion about what directions ought be given. On that day, the applicant’s evidence concluded and the Crown gave its final address (see below).


The trial judge’s reasons for refusing to discharge the jury


56. The trial judge noted that the Crown did not oppose the application.


57. Of the first matter (that the applicant looked as if he was on drugs), the trial judge said that such words were not discernible on the transcript but that a “firm direction, suitably crafted, to the jury would overcome and remedy the apprehended impact of any prejudice to the accused and ensure that he received a fair trial”.


58. Of the second matter (that the applicant told the complainant that she was a prostitute), the trial judge said:

“There is little dispute that both the accused and the complainant at times lost their tempers when their relationship began to deteriorate and they argued. The fact that the accused used intemperate language and called the complainant a prostitute when she accused him of being unfaithful on her evidence would not mean he could not receive a fair trial. This was a matter for the jury. If necessary, a suitable direction could be given to address any concerns this may hold at a suitable stage during the trial.”

59. Of the third matter (that the applicant had to go to Green Valley Police Station) or the fourth matter (that the sex between the applicant and the complainant in her car was non-consensual), his Honour said that these were matters for the jury and provided no justification for the jury to be discharged.


60. Of the fifth matter (the suggestion that the complainant had said that after 8 March 2020, all sexual activity was non-consensual “except when he’s drugging me”), the trial judge considered that this was a matter for the jury (which would appear to be covered by the firm direction which his Honour proposed to give that there was no evidence of anyone using drugs).


61. Of the sixth matter (the possibility that there had been a reference to the applicant being in custody, notwithstanding that there was no record on the transcript of that being said), the trial judge considered that “any prejudice to the accused could be cured by a suitable direction”.


62. Of the seventh matter (the reference to the applicant being a high-risk offender), the trial judge said that any concern about prejudice to the applicant was cured by Constable Riley’s evidence that the applicant was not on the High Risk Offenders List. His Honour said further:

“Whilst I consider it would be obvious to the jury that the complainant mentioned the ‘high-risk offender thing’ simply because Constable Riley was part of that police team rather than it being the case the accused was a high-risk offender, I would give to consideration to giving direction in my summing up if it was necessary.”


63. Of the eighth matter (that the complainant said that the applicant hit her and that the applicant first forced her to have sex with him on 29 March 2020), his Honour referred to the complainant’s acceptance that “this was the first time she had ever mentioned the accused hitting her and had made no reference to this in any of her police statements”. The trial judge noted that the applicant’s trial counsel did not submit that she was procedurally disadvantaged and considered that it was a “matter of fact for the jury to determine”.


64. Of the ninth matter (that the complainant accused the applicant of taking money from her and her daughter), the trial judge said:

“There has been little dispute that during a period of time during their relationship the complainant worked with the accused at a restaurant at Camden owned by the accused’s sister. There has been also little dispute that the money they earned from this work was pooled and held by him. It has been part of the defence case that he used the money to pay the rent and other living expenses when they were living together. On the other hand, the complainant maintained the accused did not pass onto her the wages that were properly due to her but kept them himself. [The applicant’s trial counsel] acknowledged that it was likely the complainant’s evidence about the accused taking money that was due to her and her daughter, as she asserted, was to be understood in this context. Accordingly, this is not a matter justifying a discharge of the jury. What direction, if at all, should be given to the jury can be considered at the close of all the evidence and after the accused has given evidence.”


65. Of the tenth matter (that the applicant took her sunglasses and sold them and borrowed her ring), the trial judge said:

“It is a factual matter for the jury whether they find the complainant asked the accused to sell her sunglasses or any other item to raise money, to quote her Facebook message, ‘on my behalf’, and to quote his response, ‘to pay the rent’, or whether he simply kept the money. It was not a ground to discharge the jury.”


66. In conclusion, the trial judge said:

“The principles that guide the exercise of a trial judge’s discretion whether to discharge a jury was set out in the High Court case of Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 at 440 to 441. In Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at 510 to 511 the Court set out the key considerations when deciding an application to discharge the jury.

The two matters which caused me concern were firstly reference by the complainant to the occasion when the accused came to her premises on 14 April 2020 and she said he ‘just looked like he on drugs on that time’ and secondly, reference by her to the accused being in custody. Neither of these matters was transcribed and there was a possibility that they were not such as to ‘have left vividly etched on the mind of the jury’: see Crofts at 441.


Acting on the assurance of both counsel that the complainant made these comments, I gave directions to the jury about these matters which I considered would overcome and remedy the apprehended impact of any prejudice to the accused and to ensure he received a fair trial. The combination of these two matters and the other matters raised by [the applicant’s trial counsel] in my view would not result in the accused receiving an unfair trial.


The other matters raised by [the applicant’s trial counsel] did not require, at that stage, the jury to be discharged or further directions to be given about those matters particularly in view of the fact that the accused would give evidence and have the opportunity to answer the various assertions made by the complainant.”


The Crown address


67. The Crown submitted that the complainant was a witness of truth and that it was understandable that she would retract her statement about the applicant slapping her in March 2020 because, at that time, she still loved him and did not want to get him into trouble for breaching the AVO.


68. Early in the Crown’s closing address, the prosecutor said:

“First, let's address the elephant in the room. There was no doubting that the relationship between the accused and [the complainant] was, at times, tumultuous. That is one thing that both the Crown and the accused agree on in this matter. There is a history set out before you in exhibit A which paints a less than rosy picture. There were numerous occasions when the police were called to [the complainant’s] premises after her and the accused had arguments, arguments which they both told usually stemmed from one thinking the other was cheating on them, or from issues with money. You can see from exhibit A that, often, the police took no action. They couldn't determine what party was at fault, or neither party, [the complainant] or the accused, wished to speak to the police

That is, members of the jury, until the events of April 2020. What happened between 11 and 16 April was not just another chapter in a rocky relationship, the Crown submits. It wasn't simply arguments over phones, money, cheating or jealousy. On those occasions, the accused sexually assaulted [the complainant]. He masturbated in front of her, and finally, he broke into her house and threatened to kill her if she called anyone. The Crown says that you would be satisfied of those offences on the indictment, and during this closing, I'll explain to you why that is.”


[Emphasis added.]


69. There was no reference in the Crown’s closing to drugs, the suggestion that the complainant was a prostitute (or that the applicant referred to her as one) or to his being in custody. Nor was there any reference to any of the seven matters relied on by the applicant in this Court in respect of grounds 2 or 3 (see below), except in so far they can be regarded as falling within the category of “arguments over phones, money, cheating or jealousy” emphasised in the passage extracted above. The Crown did not seek to rely on the parties’ turbulent relationship to support the counts on the indictment. Rather, the prosecutor drew a distinction between “arguments” about various topics and the conduct which comprised the six counts.


70. The only exception to this matter was the evidence about the events of 8 March 2020 which led to the AVO against the applicant. The Crown needed to address this because it was an important plank in the applicant’s case that the complainant was not worthy of credit as she had made a statement alleging that the applicant had slapped her and then made another statement retracting it. It was in this limited context that the Crown submitted that the complainant and applicant were in a “domestically violent relationship” and that the applicant “had difficulty taking no for an answer” in the following passage (which was relied on by the applicant in support of ground 2):

“[The complainant] maintained at the hearing, just as she did in her evidence before each of you, that what she said to police in that second statement was wrong. That the accused had slapped her. And she gave, the Crown submits, understandable reasons as to why she gave that second statement.

... [The complainant] admitted that she told a lie in that second statement to the police. She did not shy away from that. She said that it was the truth that the accused had slapped her, and she told you the reasons why she changed that statement.


...


You might think, members of the jury, either from previous life experience or by using your common sense, that that is completely consistent behaviour with someone in a domestically violent relationship, which we know [the applicant] was at that point in time.”


[Emphasis added to indicate the portion relied on by the applicant in support of ground 2.]


The defence address


71. The applicant’s case was, relevantly, that:

(1) he had not been in any way violent towards the complainant and that all acts of sexual intercourse between them had been consensual; and

(2) in so far as the complainant gave evidence of his violence towards her or his having sexual intercourse with her without her consent, she was lying or, at least, unreliable.


72. Consistently with his case, the defence closing raised issues about the complainant’s credibility. The following excerpt is sufficient to give a flavour of the address:

“The next part of the evidence is quite crucial. It involves [the complainant] and the accused contacting each other after he gets bail. Now, at this point, he is under the conditions of an AVO, which you know from exhibit A, they are not to contact [the complainant] and not to go to her place. Now, we know, and the accused has said, that he went there. He was there all the time. Did he contact her? Yes. You've got all those phone calls. Did she contact him? Yes, you've got all those phone calls. Anyway, he's under an AVO.

As you may recall - now, this is the interesting part of this - she has the protection of the AVO, yet they are talking. She's told you that she wants to forgive him. Now, of course, she has the protection of this AVO, yet what does she do? She goes to see him. She takes back the PlayStation 4 to him. He's brought her favourite food, which is the deep fried pork dim sims from Fairfield Heights, and they are in the back of their car. What do they do? Ladies and gentlemen, they have sex.


Now, of course, she didn't tell the police about that, because you might think at that point you might be starting to have some doubts about the veracity of what [the complainant] says, because number 1, she didn’t even have to go there; number 2, she does go there; number 3, she has sex and she says, ‘Yes, that's right,’ and then she says, ‘Oh, that was non-consensual.’ Well, ladies and gentlemen, she didn't tell the police about this. She gave a statement to the police about the sex on 4 August, because she doesn't include this one, because you see, she's gone to see him, him not coming to see her.


So, ladies and gentlemen, at this point, I suggest to you, you would have a doubt about the veracity of the relationship about [the complainant]. Now, of course, she's also give some other information a bit later on and she also tells us that there was another event on the - I believe it's 29 March, where she says that that was the first time that Mr Ngo had sex with her and she didn’t consent. Now, of course, you never heard that before.”


The summing up


73. The trial judge gave the summing up on 24 November 2021 (the seventh day of the trial). During the course of the summing up, his Honour arranged for the transcript (which had been agreed) of the complainant’s evidence to be given to the jury (in answer to their request, which, as noted above, had been made on 18 November 2021, the third day of the trial). After distributing the transcript to the jury, his Honour said:

“Now during [the complainant’s] evidence you may have heard her say that none of the sexual activity after 8 March was with consent followed by the words ‘except when he is drugging me’. The parties agree there is no evidence in this case that the accused drugged [the complainant]. I direct you in the strongest terms not to speculate. There is no reference to drugs in the case either for or against the accused. It is not relevant. It would be a complete miscarriage of justice for you to take into account this statement by [the complainant]. It would be unfair to both the Crown and to the defence. And it would not be in accordance with the law. I direct you to ignore this if you happen to have heard it. I have struck it out from the evidence. It does not appear in the transcripts that you have received.”


74. In the course of the summing up, the trial judge raised with counsel the Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 direction and also a direction that could be given regarding the complainant’s evidence, in light of s 294AA of the Criminal Procedure Act 1986 (NSW) (which prohibits a trial judge from directing a jury that complainants as a class are unreliable or that there is a danger of convicting on the uncorroborated evidence of any complainant). The trial judge also gave a direction that there may be good reasons why a complainant might delay in making a complaint about a sexual assault. Neither the applicant’s trial counsel nor the prosecutor suggested that there was any material error in the summing up which needed to be corrected or additional direction that needed to be given (this having been the subject of considerable discussion in advance of the summing up).


75. Of present significance, no anti-tendency direction was sought by the applicant’s trial counsel; nor was any such direction given (beyond the one that had been given in respect of the AVO, which is set out above).


76. The jury retired to consider its verdict at 3.15pm on 24 November 2021. The jury returned its verdict about 24 hours later at 3.32pm.


Grounds 2 and 3: admission of evidence of the applicant’s bad character and failure to give a direction in accordance with s 95 of the Evidence Act


77. Ms Lewer contended that grounds 2 and 3 were related and ought be addressed together. She submitted that a miscarriage of justice arose from the failure of the trial judge to provide an anti-tendency direction about seven different matters which she referred to as “additional bad character evidence”. The word “additional” was used to indicate evidence beyond that which was contained in Exhibit A.


78. The seven matters, each of which derived from the complainant’s evidence, were as follows:

(1) the complainant ended her relationship with the applicant because of his “assaulting” her by “pinching” her at the restaurant where she worked for his sister;

(2) the applicant became “aggressive” when she confronted him about his infidelity and swore at her and walked into her bedroom after she had told him to leave her house;

(3) the applicant “done a lot of physically hurting me in the bus”, “chew[ed] [her] finger” and used to phone her “so many times”;

(4) the applicant was charged with breaching the AVO which “[i]nvolved a lot of issue. So not only for the slap”;

(5) the applicant had non-consensual sex with her in the back of her car on 17 March 2020 when she was visiting him to give him the PlayStation;

(6) her denial that sex between them after 17 March 2020 was consensual; and

(7) the suggestion that the complainant had said in her evidence that the applicant had drugged her.


79. I propose to address these seven matters in turn before considering the balance of Ms Lewer’s submissions.


1. the evidence that the applicant pinched the complainant at the restaurant where she was working for the applicant’s sister


80. As referred to above, this matter was relied on by the applicant’s trial counsel in support of her application to discharge the jury and was specifically included in the list of such matters. After refusing the application, the trial judge indicated that there were two directions which needed to be given (neither of which concerned this evidence). The applicant’s trial counsel can be taken to have considered whether a direction was required in respect of this evidence and decided against asking for one.


81. This is a significant matter in the present case because of the way the defence case was run. In effect, the defence case was that the complainant was unreliable or dishonest and fabricated false allegations of violence (including non-consensual sex) against the applicant to take revenge for his suspected infidelity.


82. An anti-tendency direction (“if you find that the applicant, for example, pinched the complainant at the restaurant, you must not use it to find that he was the kind of man who had a tendency to be violent against a woman who was his intimate partner”) would have tended to cut across the defence case because, if given, it specifically countenanced the possibility that the jury could find that he had, indeed, pinched her in the restaurant. The question whether the omission to seek an anti-tendency direction was the result of a deliberate forensic decision by the applicant’s trial counsel is considered further below.


2. the applicant was aggressive towards the complainant by swearing at her and going into her bedroom when she asked him to leave


83. This matter was not included on the applicant’s trial counsel’s list of matters on which she relied for a discharge of the jury. Although the complainant described the applicant as “aggressive”, she clarified this by indicating that he swore at her and followed her in the context of an argument about him having an affair.


3. the applicant had hurt her on the bus and chewed her finger as well as phoning her


84. It is difficult to discern precisely what was being alleged by the complainant. The applicant’s trial counsel (understandably) did not pursue this and moved to another topic.


4. the applicant had to go to Fairfield Local Court for breach of the AVO


85. Immediately after the complainant gave this evidence, the applicant’s trial counsel obtained her agreement to the facts that the hearing for alleged breach of the AVO (for slapping the complainant) took place at the Fairfield Local Court and that the applicant had been found not guilty. This further cross-examination effectively neutralised her evidence about the applicant having to go to Fairfield Local Court.


5. the applicant had non-consensual sex with the complainant in the back of her car on 17 March 2020


86. The applicant’s trial counsel put to the complainant in cross-examination that they had (consensual) sex in the back of her car on 17 March 2020 when she parked her car around the corner from his parents’ house to bring the PlayStation to him. The complainant agreed that they had sex but said that it was non-consensual. This was on the applicant’s trial counsel’s list of matters in support of discharge but no direction was sought in respect of it. I accept the Crown’s submission that an anti-tendency direction “would only have excited the very prejudice it sought to eliminate”.


87. Further, the applicant’s trial counsel must have envisaged that when she put the proposition to the complainant that she had sex with the applicant in the back of her car on 17 March 2020 (as an indication that they had reconciled, which was borne out by her bringing the PlayStation for him), there was a risk that the complainant might say that it was non-consensual. It can be inferred that the applicant’s trial counsel thought that the risk was worth taking and that, if the complainant said that she did not consent, the jury may reason that she was lying (which would assist the defence case that the complainant was ready to make false allegations about him when it suited her).


6. non-consensual sex on 17 March 2020


88. I accept the Crown’s submission that, fairly read, the complainant’s evidence was that, on 17 March 2020, the applicant had non-consensual sexual intercourse with her. Thus the fifth and sixth matters are, in effect, a single matter.


7. allegation that the applicant drugged the complainant


89. The suggestion that the applicant had drugged the complainant did not arise from anything that appeared on the transcript. It was raised as a possibility in the circumstances set out above. The trial judge gave a firm direction to the jury about it, the terms of which were agreed by the parties. The trial judge’s direction was lengthier than that agreed by the parties and gave greater weight to the directed prohibition.


90.Ms Lewer contended that the Crown’s failure to put the “bad character” evidence, which had emerged from the complainant’s evidence to the applicant in cross-examination or to address it in its closing submissions (which forms part of ground 2) caused a substantial miscarriage of justice.


Consideration


91. Grounds 2 and 3 raise two related issues: first, the admission of “bad character” evidence; and, second, whether an anti-tendency direction ought to have been given.


The requirement for leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)


92. The applicant’s trial counsel did not object to the evidence given by the complainant about the matters which Ms Lewer described in this Court as “bad character” evidence. Nor did she seek a direction that the complainant’s non-responsive answers which contained much of the evidence of which the applicant now complains be struck from the transcript or ignored by the jury (except for the matters which were the subject of the two specific directions). Further, the applicant’s trial counsel did not seek an anti-tendency direction, either before or after her application for discharge of the jury was rejected. Accordingly, as Ms Lewer accepted, leave is required to argue grounds 2 and 3 by reason of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules).


The relevance of “bad character” evidence


93. The agreed facts raised the applicant’s “bad character” in so far as they comprised evidence of complaints made by the complainant about him in calls she had made to the police and the AVO which was made in respect of him as a result of the complainant’s police statement that he slapped her on 8 March 2020. These matters formed a substantial part of the applicant’s case which was: the complainant was prepared to make allegations about the applicant’s conduct towards her (including violent conduct), which she was prepared to retract, thereby casting doubt on her veracity. In this sense, the allegation that the sex in the car on 17 March 2020 was non-consensual had the potential to assist the applicant’s case about the complainant’s preparedness to make false statements (including by way of recent invention) about him.


The ambit of the Crown case


94. The Crown case is delineated by the opening and closing addresses. In R v Tangye (1997) 92 A Crim R 545, this Court (Hunt CJ at CL, McInerney and Sully JJ agreeing) said:

“The obligation of the Crown prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses.”


95. The “Crown case” is not the sum total of the evidence of all of the prosecution witnesses (some of whom may have been called by the prosecutor to fulfil its duty to the accused whether or not they assist the Crown case: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 674 (Dawson J); [1983] HCA 42). Thus, it does not follow from the fact that a prosecution witness has given evidence, particularly of something extrinsic (as occurred in the present case with the complainant’s evidence of unrelated discreditable conduct of the applicant) that the Crown is required to adopt the evidence as part of its case or that it is obliged to put propositions in accordance with such evidence to an accused in cross-examination, as it would be in accordance with the rule in Browne v Dunn (1893) 6 R 67 if those matters formed part of its case. For example, this Court held in Soames v R [2012] NSWCCA 188 at [109] (Latham J, Allsop P and Davies J agreeing) that a prosecutor was entitled to put submissions in closing address to the jury that a prosecution witness was unreliable. Further, a clear distinction is drawn in the summing up between the trial judge’s obligation to summarise the cases of the respective parties (which is required in every case: R v Meher [2004] NSWCCA 355 at [77] (Wood CJ at CL, Buddin and Shaw JJ agreeing)) and to summarise the evidence at the trial (which may not be required in every case: s 161(1) of the Criminal Procedure Act 1986 (NSW)).


96. These matters are sufficient to explain why the prosecutor had no obligation to put to the applicant in cross-examination those matters about which the complainant had given evidence which did not form part of the Crown case and why, accordingly, this aspect of ground 2 has not been made out. The Crown case was that the applicant did the acts which constituted each of the counts on the indictment. It was not part of the Crown case, for example, that the applicant had non-consensual sex with the complainant in the back of her car on 17 March 2020. Thus, the Crown was not obliged to refer to it in closing address.


97. Ms Lewer also relied, in support of ground 2, on the reference in the Crown closing to the complainant being in a “domestically violent relationship, which we know [she] was at that point in time” (which is highlighted in the extract from the Crown’s closing address set out above). It is plain from the context that the Crown was referring to the applicant slapping the complainant on 8 March 2020 and not to any of the other acts to which she referred in her evidence. The Crown was entitled to rely on that matter as background. I do not accept that this was tantamount to an invitation to the jury to engage in tendency reasoning generally. Further, the jury had already been given an anti-tendency direction in respect of the AVO, which arose out of what occurred on 8 March 2020.


The circumstances in which an anti-tendency evidence may be sought or is required


98. An “anti-tendency” direction is a direction to the jury that they are not to use certain evidence for a tendency purpose: that is, they are not to reason that because the accused did x, he or she is more likely to have done y or that the accused is the type of person who, having done x, would do y. The reason such a direction is given is that evidence can only be used for a tendency purpose when the criteria in s 97 of the Evidence Act have been met (the notice requirements and a ruling that the evidence has “significant probative value”). Section 95 prohibits use of otherwise relevant evidence for a prohibited purpose (such as a tendency purpose) if it has not been admitted for that purpose.


99. However, the need to prevent tendency reasoning does not require a direction in all cases. The question whether an anti-tendency direction ought be sought (or is required to be given), in relation to multiple counts of sexual offending or, of present relevance, in relation to discreditable conduct (including uncharged conduct) does not admit of a general answer. The reason for this is that much depends on the circumstances of the case and the defence to the charges. Indeed, there are some instances where it might be thought prejudicial to the accused’s case to give an anti-tendency direction.


100. In KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, McHugh J said, of present relevance, at [39]:

“If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate.”

[Emphasis added.]


101. Thus, careful consideration needs to be given to the accused’s case at trial in order to determine whether such a direction ought to have been given and to understand why it may not have been sought by the accused’s trial counsel or given by the trial judge in the absence of such a request.


102. In this respect, there are some analogies between the applicant’s case at trial and the case run at trial by the appellant in Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194 (Hamilton).


103. In Hamilton, the appellant’s case at trial was that the evidence given by his sons and his wife was concocted and was the result of a conspiracy between them because his sons had sided with his wife upon their separation. The High Court held that no anti-tendency direction was required in circumstances where the appellant’s case was that he had committed none of the offences and all of the evidence of the alleged offences was false. In these circumstances, an anti-tendency direction would have tended to undermine the appellant’s case (which provided, as set out in more detail below, an objective reason for the appellant not asking for one).


104. The High Court (Kiefel CJ, Keane and Steward JJ) said, of present relevance:

“[49] A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act. The adversarial system does justice through the diligent exertions of competent counsel in coming to grips with the special circumstances of the particular case.

...


[54] Within our system of justice, save for exceptional cases, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v R:


‘[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice’,

their Honours went on to say:

‘The absence of an application for a direction may ... tend against finding that that risk was present.’


[55] The majority of the Court of Criminal Appeal were right to conclude that the failure of the appellant’s counsel at trial to seek an anti-tendency direction was a deliberate decision based on the circumstance ‘that he did not consider that such a direction was necessary’ to ensure a fair trial of the appellant. Indeed, this is clearly the better view.


[56] There is no reason to doubt the competence of defence counsel. Indeed, it may be said that he conducted his client’s case with considerable success. He resisted, successfully, the Crown’s tendency application. And, as has been seen, in the course of the trial judge’s summing-up, when defence counsel was afforded the opportunity to consider whether further directions were required, he did not seek an anti-tendency direction in respect of the counts on the indictment but rather pressed — again successfully — his application for the Murray direction, which was ultimately given by the trial judge. In these circumstances, the suggestion that defence counsel failed to seek an anti-tendency direction as a result of oversight on his part is fanciful.”


[Footnotes omitted.]


Whether an anti-tendency direction was required in the present case for bad character evidence beyond the events of 8 March 2020


105. In the present case, the Crown case depended on the credibility and reliability of the complainant as to the matters charged. The Crown was scrupulous to put to one side extrinsic matters such as those listed above, although they were referred to at the outset of the Crown’s closing address for the purposes of putting them to one side. This approach explains why the Crown did not cross-examine the applicant about these extrinsic matters and why no complaint could legitimately be made by the applicant that it did not do so (as appears in the wording of ground 2). The Crown case, its examination of the complainant, its cross-examination of the applicant, its closing and the trial judge’s summing up (to borrow the words from [49] of Hamilton) “invited the jury to follow an orthodox path of reasoning to conviction, which made the risk that the jury might instead detour into tendency reasoning distinctly remote.”


106. The applicant’s case at trial was that the jury ought not believe the complainant because she was a person who tended to fabricate false allegations about him, including concerning sexual violence. The defence case drew some support from her allegation that he had slapped her on 8 March 2020, her signed police statement to that effect, and her subsequent retraction in a later statement, which led to the applicant being found not guilty of slapping her. It potentially gained further support from her additional allegations of violence or sexual violence (that he pinched her in the restaurant, that he had had non-consensual sex with her in the car on 17 March 2020 and that he hit her on 29 March 2020) each of which was made for the first time in cross-examination, no prior mention of them having been made to police.


107. The differentiation made by the jury between the counts on which verdicts of not guilty were returned (counts 1-3) and those on which verdicts of guilty were returned (counts 4-6), which has been explained by Chen J in his Honour’s consideration of ground 1, provides some indication that the jury did not engage in tendency reasoning but, rather, was astute to arrive at its verdicts by reference to the evidence of particular counts.


108. It is difficult to accept that the applicant’s trial counsel, having conscientiously listed the matters which she contended ought result in a discharge of the jury would not either include all the matters which she considered to be prejudicial to the applicant; or, if no discharge was ordered, seek directions in respect of at least those matters which were on her list with a view to remedying any prejudice arising from them. The reasons of the trial judge indicate that his Honour was open to any such suggestions.


109. In these circumstances, it can be inferred that the fact that the applicant’s trial counsel did not seek an anti-tendency direction (which would necessarily have been premised on the possibility that the jury might accept that the applicant was violent or behaved badly towards the complainant on at least one other occasion), reflected a legitimate forensic choice that she could fairly make to give no credence to the possibility that the applicant behaved in such a way, given the substantial challenge to the complainant’s credibility on which the defence case was based. Therefore, the lack of an anti-tendency direction did not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act.


110. The same could be said of the applicant’s trial counsel failing to object to the admission of the complainant’s evidence of the applicant’s “bad character” (on the ground that, on occasion, it was non-responsive) and her failure to seek a direction that the jury disregard it.


The approach of the Crown to the discharge application


111. Ms Lewer sought to call in aid the Crown’s lack of opposition to the discharge application in support of grounds 2 and 3. I do not consider that it is capable of assisting the applicant. The present case is to be distinguished from other cases where the Crown’s active support of an application for discharge demonstrates that the Crown has a firm basis for considering that the trial ought not continue and that any conviction arrived at as a consequence of it would not be reasonable or that there would be a substantial miscarriage of justice. I do not accept that this is such a case. I do not consider that anything should be drawn from the Crown’s non-opposition to the application to discharge the jury (noting that there is no ground challenging that decision). The transcript reveals that the Crown made no positive submission to the trial judge that the jury ought be discharged but merely, in effect, acquiesced in the application and, at various points, indicated what she had heard (where there was an issue about some aspect of the complainant’s evidence).


112. The discussion about whether the jury ought be discharged was almost exclusively confined to exchanges between the applicant’s trial counsel and the trial judge. The highly experienced trial judge raised remedial measures which could be taken to eliminate or ameliorate any suggested prejudice. Such measures included the formulation of appropriate directions for the parties’ consideration (such suggestions as to the need for directions commonly originating with the trial judge). The prosecutor may have believed that her contribution was not required since the matters she might have raised had already been raised by the trial judge during the applicant’s trial counsel’s submissions.


Conclusion


113. I do not consider that there was any material risk that the jury would engage in tendency reasoning in respect of the matters raised by Ms Lewer. There was, in the circumstances of the present case, no need for an anti-tendency direction. It follows that there has been no miscarriage of justice, whether substantial or otherwise, established by its omission.


114. For the reasons given above, neither ground 2 nor ground 3 has been made out. Because of the detailed consideration of grounds 2 and 3, I propose that leave under r 4.15 of the Rules be granted.


Proposed orders


115. I propose the following orders:


(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.

(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

(3) Dismiss the appeal.


116. IERACE J: I have had the considerable benefit of reading the draft judgments of Adamson JA and Chen J. I also agree with Chen J’s determination and reasons in relation to the first ground of appeal.


117. Grounds 2 and 3 overlap, to the extent that both contend that a miscarriage of justice resulted from an absence of a direction pursuant to s 95 of the Evidence Act 1995 (NSW) in respect of certain allegations made by the complainant that constituted evidence of the applicant’s bad character. I have come to the view that such a direction was warranted. Accordingly, I would grant leave to appeal in respect of those grounds and uphold the appeal, for the following reasons.


The anticipated evidence in the prosecution case


118. The anticipated evidence in the prosecution case, as outlined by the Crown Prosecutor in her opening to the jury, was essentially that which was directly relevant to the discrete acts of sexual assault and the break and enter that were the subject of the indictment, with the exception of the agreed facts document (Exhibit A), which constituted evidence that the applicant and complainant argued on four dates in February and March 2020 and on each occasion either the complainant or the applicant phoned police. The complainant and the applicant alleged that in an incident on 24 February 2020, each had been hit or slapped by the other person. The document also noted that on 13 March 2020, an apprehended domestic violence order (ADVO) was put in place to protect the complainant. In her opening, the Crown Prosecutor said:

“You’ll hear evidence, members of the jury, that the relationship between [the applicant] and [the complainant] hit a rocky patch in February of 2020. In February and March 2020, the police were called to [the complainant’s] granny flat on numerous occasions following arguments between [the applicant] and [the complainant], and as a result, on 13 March 2020, an Apprehended Domestic Violence Order was put in place, protecting [the complainant] from [the applicant]. Now that order had numerous conditions, including that [the applicant] must not approach [the complainant] or contact her in any way, and that he must not go within 100 metres of where she lived.

From the end of March until 11 April 2020, [the applicant] would go to [the complainant’s] granny flat regularly.”


119. Exhibit A was tendered at the outset of the trial, prior to the complainant’s evidence. During the course of her evidence, the trial judge gave an anti-tendency direction in relation to the reference to the ADVO:

“The granting of such an order is a standard procedure when there is an allegation made by a party against another of a domestically violent nature. The direction I give you is as follows. You are not to reason that because such an order was made against [the applicant], that he is guilty of any of the offences alleged in the indictment.

As has been previously said to you by the Crown, and also by me in my opening remarks, that the offences on the indictment must be proved beyond reasonable doubt. You cannot act on the basis that [the applicant] is likely to have committed the offences charged, because you’ve heard that an apprehended domestic violence order was made against him. That is not the reason the evidence was placed before you about there being put in place an apprehended domestic violence order.


The evidence about that has a limited purpose, namely, to explain the background to the relationship between [the applicant] and the complainant. The fact that an apprehended domestic violence order was put in place on 13 March 2020 cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges on the indictment have been proved beyond reasonable doubt.”


120. His Honour did not direct the jury as to how they were to use the other aspects of Exhibit A.


121. In essence, the applicant submits that the case against him included unanticipated evidence from the complainant of his bad character (the extraneous allegations), to the effect that, as expressed in written submissions to this Court on behalf of the applicant:

“... [the applicant] would regularly physically assault her, sexually assault her, and engage in other disreputable conduct leading to the conclusion that he was, in effect, a domestic and sexually violent offender.”


Difficulties in hearing and understanding the complainant’s evidence


122. The complainant was born in Vietnam. She gave evidence before the jury via audio visual link (AVL) from a remote location and without the assistance of an interpreter. The transcript of her evidence has multiple references to her evidence being “not transcribable”, sometimes to the point that a reader is unable to sensibly discern what her evidence was. An example from the cross-examination of the complainant is as follows:

“Q. Ma’am, what I’m saying to you about these sexual assault allegations, that at the time that you knew your sex with [the applicant] was consensual?

A. It wasn’t consensual. As I said to you, it wasn’t consensual, and that’s why I feel shamed. That’s why I put..(not transcribable)..keep telling my friends..(not transcribable)..she form the family spirit. Should I or should I not, and we actually attempt to..(not transcribable)..to the..(not transcribable)..Police Station, but then I was afraid..(not transcribable)..because I had experience with the police before and I..(not transcribable)..the same, but he didn’t. And..(not transcribable)..because he keep coming to my door, because she knew something there, and she keep asking me is there anything that you wanted to give us further. I was no but then they get help, I maybe..(not transcribable)..because I've been depression for a long, long, long time, even my counsellor can see it on me. But I was really, really down. I living in nightmare every night. I constantly cry and yeah, it took me a year to report..(not transcribable)..to try to move on, and I need to..(not transcribable)..I met recently, but I would lie to a woman on the second statement of the whole of March, and I blamed myself for lying, and I..(not transcribable)..forever.”


123. It is apparent from observations in the transcript made by both counsel and the trial judge that the state of the transcript reflected difficulties that they also experienced in hearing and understanding the complainant’s evidence. On occasion, some of the unsolicited evidence of matters that were adverse to the applicant’s character was not captured in the transcript but was heard at the Bar table and accepted by the trial judge as having been given.


124. The extraneous allegations are comprehensively summarised in the judgment of Adamson JA.


The application for a discharge of the jury


125. Twice during the course of the complainant’s evidence in chief, counsel for the defence expressed concern at the complainant’s non-responsive adverse assertions as to the applicant’s character and anticipated that in due course she would be seeking appropriate directions.


126. The complainant’s comments continued during her cross-examination, and counsel for the defence again registered her concern on the record and reaffirmed her intention to seek appropriate directions. However, in the following session of cross-examination, the complainant continued to make these allegations, including the allegation that the applicant hit her every time they argued and that he used force to have non-consensual sexual intercourse with her on 29 March 2020. At the next break, counsel for the defence submitted that the prejudicial effect of the complainant’s comments was no longer capable of being cured by directions and made an application for a discharge the jury.


127. The trial judge sought the position of the Crown Prosecutor:

“Your Honour, my position as would normally be the case in an application such as this is that your Honour would be able to frame some directions to remedy the comments made by the complainant, however I understand that by doing that it simply adds oxygen to those comments, therefore just highlighting them to the jury again. The Crown apart from saying that doesn’t wish to make any further submission with respect to the application.”


128. The hearing of the application was adjourned until the completion of the complainant’s evidence. During submissions, the Crown Prosecutor changed her position to one of joining in the application for a discharge, although the judgment does not record that. The application for a discharge was refused.


129. As to the complainant’s allegation that the applicant drugged her, the trial judge said, in his judgment:

“[Counsel for the defence] indicated [the applicant] would deny ever drugging the complainant and it would be his word against her word. It would, therefore, be open to the jury to reason that if [the applicant] did not drug the complainant that this remark suggested she did consent to sexual activity with him or, at the very least, gave him the impression that she did consent. Again, this was a matter for the jury and not a valid basis to discharge the jury.”


130. However, in a break during the examination in chief of the applicant, further discussion on the issue occurred between counsel and the trial judge. Both counsel informed the trial judge that their preferred course was that any reference to drugs or being drugged should be deleted from the transcript and the jury given a direction as to why that step was taken. The trial judge responded:

“When we discussed this, reference was made and in my discussion with [counsel for the defence], as I said in my judgement, that that may, and I emphasise the word may, be of forensic advantage to her if [the applicant] gave evidence that he never drugged her because the jury may think that it's relevant to her consent to sexual activity.”


131. His Honour agreed to give the direction sought, in light of which, neither counsel for the defence nor the Crown Prosecutor questioned the applicant as to whether he had drugged the complainant.


132. In his judgment refusing the discharge application, the trial judge referred to the complainant’s claim that every time they argued, the applicant hit her and that on 29 March he forced her to have sexual intercourse without consent. His Honour said:

“The complainant then agreed that this was the first time she had ever mentioned [the applicant] hitting her and had made no reference to this in any of her police statements.

[Counsel for the defence] did not submit she was procedurally disadvantaged. I considered this was not a matter justifying the jury being discharged and again was a matter of fact for the jury to determine.”


133. The reference to procedural disadvantage was apparently to whether counsel for the defence would be able to obtain instructions in respect of the allegation without an adjournment or discharge.


The trial judge’s directions


134. In relation to the complainant’s allegation that the applicant had sexual intercourse with her without her consent by drugging her, the trial judge deleted the reference to the term “drugging”, which had been added to the transcript, from that which went to the jury, and directed them as follows:

“Now during [the complainant’s] evidence you may have heard her say that none of the sexual activity after 8 March was with consent followed by the words ‘except when he is drugging me’. The parties agree there is no evidence in this case that [the applicant] drugged [the complainant]. I direct you in the strongest terms not to speculate. There is no reference to drugs in the case either for or against [the applicant]. It is not relevant. It would be a complete miscarriage of justice for you to take into account this statement by [the complainant]. It would be unfair to both the Crown and to the defence. And it would not be in accordance with the law. I direct you to ignore this if you happen to have heard it. I have struck it out from the evidence. It does not appear in the transcripts that you have received.”


135. Leaving aside the fact that, as a matter of law, the complainant’s allegation did constitute some evidence that the applicant drugged her, the direction did not negate the context in which the word “drugging” was used, namely, that between 7 March 2020 and the applicant’s arrest on 16 April 2020, there were multiple occasions of the applicant having non-consensual sexual intercourse with her, as well as the three instances that were particularised in the indictment.


136. Similarly, no direction was given as to how the jury was to treat the complainant’s evidence that the applicant hit her every time that they argued, or in relation to the alleged incident of 29 March.


137. The trial judge gave a direction to disregard the complainant’s evidence that the applicant “just look like he on drugs at the time”, saying:

“The statement ‘and this just look like he on drugs at that time’ could have a number of interpretations. I strike that from the evidence. In other words, that is not part of the evidence. I can tell you that it is just not relevant. There is no evidence in this case that [the applicant] was on drugs, so I direct you in the absolute strongest terms that you are, firstly, not to try to speculate what was meant by that statement. It can have a number of interpretations. Secondly, that you should operate on the fact that there is just no reference to drugs in this case by [the applicant]. It is not relevant. It would be a complete miscarriage of justice if you were to take into account this part of what she said. It would be unfair to [the applicant], it would be unfair to the Crown, it would not be in accordance with the law. It would not be in accordance with the strong direction I give to totally ignore it. I have struck it from the evidence.”


138. The trial judge also gave directions to the jury to disregard the complainant’s evidence that the applicant was on bail at the time of the alleged offences and that he was in custody at the time of the trial in their determination of the counts in the indictment.


Consideration and determination


139. As observed by Adamson JA, the complainant’s extraneous allegations did not form part of the Crown case so that it was not incumbent upon the Crown Prosecutor to put them to the applicant. Indeed, not putting the allegations was consistent with the Crown having joined in the earlier discharge application.


140. Having failed to obtain a discharge of the jury, counsel for the defence elicited from the applicant a broad-brush denial of any sexual assaults or use of violence. The applicant said that when he and the complainant argued:

“She would usually say ... ‘If you don’t do what I do I will tell the police that you raped me or you hit me as well.’”

Further, that:


“... every time we would have sex she would always bring up the case that because I have came inside of her she would use that to tell the police that I raped her and to use that as evidence on me.”


141. In my opinion, an inference is not available from the trial transcript that counsel for the defence turned her mind to whether she should seek an anti-tendency direction in respect of the extraneous allegations and made a deliberate decision not to do so. This is not a case that falls within the parameters of the observations in Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194 at [49], [54]-[56], which are extracted at [104] of Adamson JA’s judgment.


142. Indeed, there was no rational tactical pathway by which the extraneous allegations could assist the applicant. While counsel for the defence did attack the complainant’s credit by cross-examining her to the effect that her assertion in her second police statement that the applicant had not slapped her was the truth, it does not follow that admissions by the complainant that she had not informed police of the extraneous allegations could also operate to the applicant’s advantage. There is a qualitative and quantitative leap from a withdrawn allegation of two slaps, to the complainant not reporting to police that the applicant used force every time they argued; that every instance of sexual intercourse after 8 March 2020 was non-consensual; and that he used force to perpetrate two previously unreported specific incidents of non-consensual sexual intercourse, on 29 March 2020 and on an unspecified date in her car.


143. Further, if trial counsel for the applicant had made a tactical decision to utilise the extraneous allegations on that basis, one would not expect counsel to have brought a discharge application based upon that and other, less serious, aspects of the extraneous allegations. Having failed to secure a discharge, if that remained defence counsel’s tactical goal, one would expect her to have pursued it in her examination of the applicant and in her address to the jury. Instead, following the trial judge’s refusal of the application for a discharge, she took a minimalist approach to the extraneous allegations in her examination in chief of the applicant and in her address to the jury.


144. Counsel for the defence made a three-sentence reference in her address to the allegations concerning other acts of non-consensual sexual intercourse. In so doing, she confused the date from which the complainant alleged the applicant commenced having non-consensual sexual intercourse with her (8 March 2020) and a date when, she alleged, he used force to have non-consensual sexual intercourse (29 March 2020):

“So, ladies and gentlemen, at this point, I suggest to you, you would have a doubt about the veracity of the relationship about [the complainant]. Now, of course, she’s also [given] some other information a bit later on and she also tells us that there was another event on the - I believe it’s 29 March, where she says that that was the first time that [the applicant] had sex with her and she didn’t consent. Now, of course, you never heard that before.

Let’s move on.”


145. A reading of the relevant parts of the trial transcript, in particular the extensive discussions between the trial judge and counsel for both parties, suggests that it simply did not occur to either counsel or the trial judge that an anti-tendency direction was required. There was no mention in those discussions of that topic at all. It appears that both counsel proceeded on the basis that the extraneous allegations should not be further pursued or highlighted.


146. As noted by Chen J, there were substantive differences in the evidence relevant to the counts for which the applicant was acquitted and those for which he was convicted. It does not necessarily follow that a mix of acquittals and convictions demonstrates that the jury did not take the extraneous allegations into account in arriving at the convictions for the last three counts.


147. For these reasons, in my view, the absence of an anti-tendency direction caused a substantial miscarriage of justice. I would grant leave as required by s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), allow the appeal, quash the convictions on counts 4, 5 and 6, and order a re-trial on those counts.


148. CHEN J: By indictment dated 17 December 2020, the applicant was charged with six offences that are alleged to have occurred in the period 11-16 April 2020. The judgment of Adamson JA has set out the six offences (and the verdicts returned by the jury), as well as the grounds of appeal raised by the applicant.


Background


149. The background facts are covered across three parts. The first part deals with the relationship between the applicant and the complainant. The second part summarises the evidence across the six counts. The third part explains the respective cases advanced by the Crown and by the applicant at trial.


The relationship between the applicant and the complainant


150. The applicant and the complainant were in an intimate relationship between October 2019 and March 2020. At that time the complainant lived in a two bedroom ‘granny flat’, with her daughter, in Smithfield. During their relationship, the applicant would often stay at the complainant’s flat, although he did not have a key to it.


151. Following the commencement of their relationship, the applicant organised for the complainant to work in his sister’s restaurant in Camden. Their relationship was turbulent and fractured. The applicant, during his evidence at trial, described it as “very rocky”, and his counsel described it during closing address to the jury as a relationship that “had troubles”. During the course of their relationship, they often argued: including about money, cheating and jealousy. On four occasions – being 9, 24 and 25 February and 4 March 2020 – police were called to the flat during the course of, or following, them arguing.


152. On 8 March 2020 the applicant and the complainant had an argument at the complainant’s flat. When the applicant left the complainant’s flat after that argument, police were called and she provided a statement that the applicant had slapped her in her face during a scuffle. As a result of this complaint, the applicant was charged with “domestic violence offences” against the complainant.


153. Four days later, on 12 March 2020, the complainant made a further statement to police in which she withdrew her allegation that he had slapped her. It was the Crown’s case that, following the applicant being charged, the applicant pressured the complainant into withdrawing the allegations. It was the applicant’s case that the complainant, when retracting the statement, merely told the police the truth, and that the complainant was otherwise “not a credible witness”.


154. On 13 March 2020, given the events that had occurred, an apprehended violence order was put in place which contained conditions, including that the applicant should not approach or contact the complainant (except through a lawyer) and that the applicant was not to go within 100 m of where the complainant lived. Notwithstanding the terms of this order, it was common ground at the trial that the applicant continued to contact the complainant (and vice versa), and to visit her at her flat.

A summary of the evidence across the six counts


Count 1


155. The complainant’s evidence was that the applicant arrived at the flat on 11 or 12 April 2020 with a ‘Happy Meal’ from McDonald’s, which he gave to the complainant’s daughter. After spending some time in the bathroom, the applicant lay down on her bed, and took off his pants.


156. The complainant’s evidence was that whilst lying on the complainant’s bed he was touching his penis, after which he left.


157. The applicant then returned early the next morning – around 3 or 4 am. The applicant arrived unannounced, and after the complainant had a shower and put on a nighty and underwear, the applicant was in her bedroom on top of her mattress. The applicant was masturbating.


158. The applicant denied the events giving rise to count 1 – viz., that he masturbated in her presence in the bedroom of her flat. The applicant’s evidence was that it “never happened”, and that he would “never do that”. In relation to this allegation, the applicant, in his evidence in chief, specifically denied saying the words to the complainant “come and suck this” and “come here and fuck me, bitch”. When cross-examined, he again denied masturbating in front of the complainant.


Count 2


159. The complainant’s evidence was that she told the applicant to stop masturbating himself, and the applicant “pulled” the complainant over, “boxed” her down and tried to take her underwear off. The complainant told him to stop, but he continued and he put his penis into her vagina. The applicant responded saying “no”. The complainant’s evidence was that the applicant, during the course of the “sexual activity” put his finger into her mouth and that she again told him to stop but he responded: “Just shut up, bitch. Let me fuck you”.


160. The sexual activity was estimated by the complainant to be for an hour.


161. The applicant accepted that on 11 or 12 April 2020 he had consensual sex with the complainant, which he described as “regular, normal sex”. The applicant’s evidence was that the sex went for “roughly just under maybe 20 minutes, 30 minutes tops”, and he denied that it went “for about an hour”. The applicant, in his evidence in chief, specifically denied pulling the complainant “down on the bed”, that he “boxed her down”, that he tried to take the complainant’s underwear off and she told him to stop, but he continued on. The applicant denied that the complainant ever told him to stop, and denied that the applicant said: “why do you do this to me?”. The applicant also denied that, in the course of having sex with the complainant, he put his finger in her mouth, that after he did this, the complainant told him to stop and, finally, he denied saying to her “just shut up bitch, let me fuck you”. When cross-examined, the applicant denied ‘sexually assaulting’ the complainant.


Count 3


162. The complainant’s evidence was that on 14 April 2020 the applicant came to the flat in the afternoon. The applicant told the complainant that he had been at a friend’s house, but, having looked at his phone, the complainant told him that he must have been having an affair. He followed the applicant into the bedroom, after which he went to the kitchen to make them lunch. After this, the applicant went back into the complainant’s bedroom, lay on her bed and masturbated. The complainant grabbed the applicant’s mobile phone, and he was watching a “porn movie”.


163. The applicant did not give any evidence about count 3 in his evidence in chief. When cross-examined, he denied masturbating in front of the complainant.


Counts 4 and 5


164. The complainant’s evidence was that she repeatedly told the applicant to stop masturbating, which he ignored. According to the complainant, the applicant then “grabbed” and “forced” the complainant “down on the bed”. Having pulled the complainant “down to the mattress”, the applicant put his finger into the victim’s vagina and started “having sexual activity after that”. The complainant’s evidence was that just prior to the applicant putting his finger into her vagina, she told him to stop, but the applicant said: “... you said, stop, but your vagina not say that. Because it’s wet”. The applicant gave evidence that she tried to move, but the applicant was “too strong for me, to defend, so I just sat and let because otherwise he want to slap me ...”.


165. The complainant’s evidence was also that when his penis was in her vagina, he touched her mouth and he put her fingers into her mouth. He was not wearing a condom, and he ejaculated.


166. The applicant accepted that on 15 April 2020 he had penile-vaginal sex with the complainant, and it was also most “likely” that he put his finger into her vagina. The applicant described the sex as just “regular sex”: he denied that he “grabbed [the complainant] and forced her down” or “pulled her down” onto the bed; he denied that he put his fingers into the complainant’s mouth; and he denied that he threatened to slap her. The applicant described the sexual activity as “obviously with consent”. During the penile-vaginal sex with the complainant, the applicant did not wear a condom, but he explained that that was because “we never used a condom”.


167. When cross-examined, the applicant denied ‘sexually assaulting’ the complainant.


Count 6


168. The complainant’s evidence was that, following the events the subject of counts 4 and 5, the applicant went to sleep and that she looked at his mobile phone – and found that “he had been chatting with another woman”. The complainant took the applicant’s phone and hid it. When he awoke, the applicant became angry and aggressive. The applicant left the flat, but returned on 15 April 2020 but the front door was locked, and he endeavoured to enter through a window – but it was also locked. The complainant still had the applicant’s phone. He requested the complainant to open the door, but she did not.


169. On 16 April 2020, the applicant returned at around midday, and the complainant returned the applicant’s phone to him whilst he was inside the flat. She then ran outside, and the applicant took her phone off her. The complainant’s “aunt” was present, and the applicant gave the phone back to her. The complainant’s evidence was that the applicant, during the course of this, pushed her to the ground to take the phone off her.


170. After these events, the applicant left. The complainant locked the door to her flat. Less than an hour later, the applicant returned and tried to open the door: he told the complainant to open the door. The complainant heard “loud banging at the front door”, and the applicant had broken through the door.


171. The applicant’s evidence in chief was that following the events on 15 April 2020, he went to sleep in the complainant’s bed. When he awoke, on 15 April 2020, he noticed that his mobile phone was missing, and he confronted the complainant about that. The complainant is said to have refused and despite the fact that the applicant “begged and pleaded” for her to give the phone back to him, she threatened to call the police. After “begging and pleading” for the complainant to return the applicant’s phone to him, the applicant “stormed out through the front door” causing the lock and chain to break from the doorframe. The applicant accepted that he used “a lot of force”, but said that damaging the door was “an accident”.


172. In connection with this count, the applicant was interviewed by police on 16 April 2020. During the course of that interview, the applicant emphatically denied going to the premises on 16 April 2020. The applicant gave evidence (in chief and when cross-examined) that, in connection with that interview, he repeatedly lied to the police.


The respective ‘cases’ at trial


The applicant’s case


173. Consistent with the pleas of not guilty entered the evidence given by the applicant in his evidence in chief, the applicant’s counsel, in her opening and closing address to the jury, put the applicant’s case in the following terms.


174. In relation to count 1, the applicant denied “in total” that he masturbated towards the complainant on 11 or 12 April 2020.


175. In relation to count 2, the applicant agreed that he had sexual intercourse with the complainant on 11 or 12 April 2020, “but it was consented to”. In this respect the applicant’s counsel emphasised that Exhibit 3 (the photograph of the complainant wearing a T-shirt and boxer shorts) was taken by the applicant after it was alleged that the conduct in counts 1 and 2 occurred: it was submitted that that was inconsistent with a person who had “been forced to have sex with somebody”, and was consistent with “their intimate relationship” being an ongoing one. This picture was described by counsel for the applicant as “absolutely crucial”. It was later submitted that the complainant, when questioned about it, reacted “very strongly to that picture of her in comfortable clothes”.


176. In relation to count 3, the applicant denied “in total” that he masturbated towards the complainant on 14 April 2020.


177. In relation to counts 4 and 5, the applicant agreed that he had sexual intercourse with the complainant on 15 April 2020, involving “fingers in the vagina and then penile/vaginal sex”, but “it was consensual”. It was also submitted that, following this time, the complainant took three photographs of the applicant asleep in her bed, and also took his mobile phone which was “unusual behaviour for someone who says they’ve been sexually assaulted” – as was the fact that, knowing that the applicant was subject to an AVO – the complainant did not contact the police to have him arrested.


178. In relation to count 6, the applicant denied the “break and enter”, with the applicant’s version being that he was leaving the flat and pulled the door open accidentally damaging it in the process. The applicant’s case was that the events occurred on 15 April 2020, and not, as the complainant alleged, on 16 April 2020 and that she had given “different accounts” of what occurred on that day.


179. In terms of the complainant’s evidence more generally, the essential submission made on behalf of the applicant was that the evidence of the complainant should not be accepted. It was argued that some of her behaviour was “unusual”, and that the complainant “gives you one version but she doesn’t tell you everything that was going on in the relationship”; that the jury should have “doubt about the veracity of the relationship”; that the jury had to “assess” the complainant. Furthermore, it was submitted that the applicant loved the complainant and she loved him, that the complainant “had an agenda”, and that the story was “not straightforward”: her “motivation was to find evidence of cheating”. The ultimate submission was that the complainant was “not a credible witness”, and that the jury should accept the applicant’s evidence.


The Crown case


180. The Crown case, as advanced during closing submissions, broadly involved two submissions. The first submission was that the applicant was an “unimpressive witness” and that the jury should “reject the denials that he gave during his evidence”. The Crown submitted that, given the applicant accepted that he lied to police when interviewed by them on 16 April 2020 – essentially in connection with count 6 – the jury should reject all of the applicant’s evidence. The second submission was that the Crown invited the jury to accept the evidence of the complainant, and that her evidence was truthful and “had a ring of truth to it”.


181. In connection with the sexual assaults (counts 2, 4 and 5), the Crown’s case was argued on the basis that the applicant had actual knowledge that the complainant did not consent to sexual intercourse (s 61HE(3)(a) of the Crimes Act 1900) and the jury was directed by the trial judge accordingly.


Ground 1: inconsistent verdicts


Introduction


182. In connection with this ground, the central submission of the applicant is that there is “no discernible difference” between the evidence in support of count 2, as against counts 4 and 5 – with the consequence that “the verdicts cannot be reconciled and that there is no rational explanation for the acquittals as against the convictions” (applicant’s submissions at [69] and [71]).


183. Before dealing with the substance of the argument advanced in support of this ground, I will set out the relevant legal principles and statutory footing for this ground of appeal.


Inconsistent verdicts: the principles


184. Inconsistency can be legal (or technical), or factual. The present case involves suggested factual inconsistency. In that situation, inconsistency of verdicts, as a ground of appeal, imposes “a test of logic and reasonableness”: the Court must be satisfied that the two verdicts cannot stand together: Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366; [1996] HCA 35 (‘Mackenzie’). Inconsistent verdicts render the resulting convictions unsafe or unsatisfactory; they are “unreasonable, or cannot be supported, having regard to the evidence”: s 6(1) of the Criminal Appeal Act.


185. Some further principles should also be noted about factual inconsistency. First, conviction on one count on an indictment, with an acquittal on another (or others) does not, without more, demonstrate inconsistency: Ganiji v R [2019] NSWCCA 208 at [13]. The position is not otherwise in instances of differing verdicts from multiple counts of sexual offending involving the evidence of one witness: Cullen v R [2022] NSWCCA 63 at [66]. Secondly, it has been emphasised that an appellate court should not too readily assume inconsistency where there are mixed verdicts, as “mixed verdicts arise from the burden and standard of proof, the requirement of separate verdicts and the role of the jury”: Bussey v R [2020] NSWCCA 280 at [61]. Thirdly, if there is a “proper way” to reconcile verdicts, by allowing an appeal court “to conclude that the jury performed their functions as required, that conclusion will generally be accepted”: Mackenzie at 367. Fourthly, “the obligation to establish inconsistency of verdicts rests upon the person making the submission”: Mackenzie at 368. Thus, in order to succeed on this ground, the applicant is required to establish inconsistency between the verdict on count 2, and the verdicts on counts 4 and 5.


Consideration and disposition


186. The applicant’s argument involves three steps – being: (a) first, the allegations of sexual misconduct made by the complainant related to two sequences of events – the first on 11 or 12 April 2020 (count 1) and the second on 15 April 2020 (count 3); (b) secondly, the applicant’s case at trial was that he disputed that he performed a “sexual act towards the victim” (what was described as the ‘sexual misconduct’) and, in connection with the offences of sexual assault, the applicant agreed that the acts occurred, but said that the victim had consented to them; and (c) thirdly, the complainant’s “evidence for counts 4 and 5 was the same as count 2”, and for present purposes both sequences of events were “identical in nature”, and it relied upon acceptance of the complainant as truthful and reliable (applicant’s submissions at [70](d) and (f)).


187. The first and second steps may be accepted: the first reflects the offences on the indictment, and the second reflected the case the applicant ran at trial. The third step was the focus of the applicant’s argument. Put simply, the applicant’s essential argument was that the logic of the acquittal on count 2 was required to be carried forward in connection with counts 4 and 5.


188. The applicant sought to demonstrate the offending conduct in connection with count 2 was indistinguishable from counts 4 and 5, and sought to compare the evidence between the counts: it was submitted, having undertaken that exercise, that the versions were “identical events in nature”, and there was “no distinct difference in the strength of the evidence given by the complainant in relation to each count” (applicant’s submissions at [77]-[78]). It was further argued that as the complainant gave evidence that, upon multiple occasions, she expressed to the applicant that she was not consenting, the jury must have found that evidence to be untrue or unreliable. Given that the applicant was acquitted on count 2, it was submitted that the rejection of the complainant’s evidence as to the absence of consent, and her vocal expression to that effect, could not be reconciled against counts 4 and 5 (applicant’s submissions at [98] and [100]).


189. The applicant ultimately submitted that a verdict of not guilty in connection with count 2 necessarily reflected the jury’s rejection of the complainant’s account on the issue of consent – or a rejection of the complainant’s account that those events occurred – with the consequence that there was “no other feature of the case that made it reasonable for the jury to reason that the complainant was accurate and reliable around the circumstances of the second sequence of events (counts 3, 4 and 5)” (applicant’s submissions at [104]). Thus, the critical fact relied upon by the applicant, said to indicate error, is that count 2 and counts 4 and 5 both depended upon the jury accepting the evidence of the complainant.


190. I do not accept the applicant’s submissions: in my view, the applicant has failed to demonstrate factual inconsistency between the verdict on count 2 and the verdicts on counts 4 and 5. That is for the following reasons.


191. First, it is important to emphasise that, where an indictment contains multiple counts, the jury will be directed to give separate consideration to each count and this direction will “often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part”: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (‘MFA’). Those directions were given in this case by the trial judge. It follows that it is generally open for a jury to accept all, or part of, the evidence of the complainant. It is not the law that a “jury must either accept or reject the lot”: MFA at [89].


192. Secondly, in the case of a sexual offence, a verdict of not guilty “does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility” by the jury: MFA at [34]. To the extent that the applicant’s submissions were, in effect, that a consequence of the verdict of not guilty on count 2 would indicate that the complainant was found to be untruthful or unreliable, and invited this Court to assess the reasonableness of the verdicts on the basis that “the complainant is a person of damaged credibility”, then that submission reflects a view that is “erroneous”: MFA at [35]; Booth v R [2022] NSWCCA 113 at [36].


193. Thirdly, accepting the starting point to be whether there existed any rational explanation for the acquittals – not the convictions – other than doubts about the complainant’s credibility (R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130]), in my view, there exists a clear and rational basis for the differing verdicts in relation to count 2 and counts 4 and 5 – namely, Exhibit 3. I will explain this further.


194. It is to be remembered that count 2 involved the offence that the applicant sexually assaulted the complainant – by penile/vaginal intercourse – on 11 or 12 April 2020, and counts 4 and 5 involved the offence that the applicant sexually assaulted the complainant – by digital penetration and thereafter penile/vaginal intercourse – on 15 April 2020.


195. In the interval between these two offences, on 13 April 2020, the applicant took a photograph of the complainant inside her flat, whilst she was wearing a T-shirt and underpants (or boxer shorts). Considerable emphasis was placed upon this evidence, and what it demonstrated, by the applicant at trial. The applicant’s trial counsel made the following submissions in connection with Exhibit 3 in her closing address to the jury:

Anyway, this picture, ladies and gentlemen, often a picture speaks a thousand words. This picture is of [the complainant] in her comfortable clothes – and she says she had T-shirt (sic) and her boxer shorts – but this is after she alleges that the accused forced her to have penile-vaginal sex and did the masturbation in front of her. You might think that her in this shot in his presence – ladies and gentlemen, you’d have some doubt about that. Is this how a person who says that she’s been forced to have sex with somebody – is this how you would expect them to behave? Ladies and gentlemen, what I’m saying to you is ask you to consider this, and it’s a matter for you, that she was comfortable in his behaviour, that this sex that was had on the 11th or the 12th was consensual and the masturbation didn’t happen. Anyway, that’s Exhibit 3. Now, as I said, I’m submitting to you that the intimate relationship was still ongoing, and you would have reasonable doubt about her assertions about the masturbation and the forced sex.


196. The importance of that evidence, to the applicant’s case at trial on counts 1 and 2, was covered in the summing up that the trial judge gave to the jury, which was in the following terms:

Another matter [the applicant’s counsel] highlighted was the significance she suggested to you the photograph of [the complainant] taken by the [applicant] on 13 April 2020 in her underpants and T-shirt in the bedroom. Bear in mind that the allegations in this Court against the [applicant] are around that time, the significance of this, [the applicant’s counsel] submitted, was that you would glean from the photograph that [the complainant] was acting comfortably and provocatively in his presence being dressed in the way that she was dressed.


197. At trial, the applicant thus argued that Exhibit 3 – which the applicant’s trial counsel described as “absolutely crucial” – was inconsistent with the complainant’s evidence that she had been sexually assaulted by the applicant (count 2). Specifically, it was submitted that it was demonstrative of the complainant behaving in a manner that was inconsistent with the way in which one might expect somebody to act after being sexually assaulted, as alleged: it was said to be supportive of the complainant being “comfortable” in the presence of the applicant – in fact, dressed provocatively – and it was also suggested to be supportive of the applicant’s evidence that there was an ongoing “intimate relationship” as at 13 April 2020.


198. Consistent with the emphasis placed upon Exhibit 3 by the applicant’s trial counsel during closing submissions to the jury, the ready explanation for the acquittal on count 2 is that the jury considered any – or all – of the matters advanced in connection with the photograph to create sufficient doubt as to the guilt of the applicant. It would not be open, in my view, to suggest that such a process of reasoning would be illogical, or be the product of the jury failing to adhere to its task: on the contrary, it would simply reflect an acceptance of the very case that was put to the jury on behalf of the applicant.


199. In this Court, the applicant sought to discount the materiality of Exhibit 3, submitting that the complainant’s evidence at trial was that she did not know that the applicant was present when this photograph was taken, and the photograph was taken without her consent (applicant’s submissions at [94]-[95]). Putting to one side that the submission adopts a different approach to Exhibit 3 to the one adopted by the applicant’s trial counsel, I do not accept this submission. It is sufficient, in my view, to simply note that the applicant’s evidence, although slightly ambiguous on this particular issue, was broadly to the opposite effect of the complainant’s: the applicant’s evidence was that the complainant knew he was holding his phone, and that he was using it to take photographs. Thus, it was open to the jury to accept (or reject) either version. In any event, whether the complainant knew that the applicant had taken the photograph did not undercut the forensic importance of the photograph, nor the way that the applicant’s trial counsel deployed it before the jury.


200. The applicant’s submission extended to arguing that, if Exhibit 3 was accepted by the jury as sufficient to displace the evidence given by the complainant in connection with counts 1 and 2, then the jury must have reasoned that they had a doubt about the applicant’s reliability and truthfulness: it was argued that the doubt which led to the acquittal “necessarily infected the evidence given by the complainant about counts 4 and 5” (applicant’s submissions at [98] and [100]). I do not accept that submission. It is contrary to the authorities that emphasise that, in cases involving a single complainant, an acquittal on one count does not compel the conclusion that the jury “must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which it has returned guilty verdicts”: Booth at [36]; MFA at [35].


201. Fourthly, in my view, the error in the approach of the applicant derives from its premise: namely, that there is “no discernible difference” between the evidence in support of count 2 as against counts 4 and 5 (applicant’s submissions at [69]). So too, building upon this, is the comparative analysis thereafter undertaken by the applicant with a view to establishing that the events “are for present purposes, identical events in nature”. They are not. There is no factual (nor temporal) overlap between the offending the subject of count 2 (which was alleged to have occurred on 11 or 12 April 2020), and the offending the subject of counts 4 and 5 (which was found to have occurred on 15 April 2020).


202. Further, there were, as the Crown submitted, some differences in the evidence between count 2 and counts 4 and 5 on the issue of consent.


203. In relation to count 2, although this evidence has been earlier summarised, it is convenient set out the complainant’s evidence in connection with the issue of consent:

CROWN PROSECUTOR

Q. So, after he told you to come and fuck him on the bed, what happened next?


A. He was still doing what he doing, like, masturbating himself and I told him to stop, and he didn’t want to stop so what he does, he pulled me over and he then he boxed me down and then he tried to take my underwear off and when I wouldn’t – I told him stop and he still continued doing it and he put his penis into my--


Q. Your vagina?


A. Yes.


Q. Okay, so I just want to go back a step, [the complainant]. You said you told him to stop. Can you remember what words it was that you said to him?


A. I said to him, “Why did you do this?”, like, “Why would you do this to me?” I told him to stop.


Q. Did he say anything back to you?


A. Yes.


Q. What did he say?


A. He said no. Just say - in my memory, he said a lot, like..(not transcribable)..it wasn’t an order, he said, “No, I like to do this”, and then when he tried to put me on the bed, he say, like, I knew he would do this and he touched my body and then he..(not transcribable)..bring the lace undies, make me turn it on and sexy, something like that, so because I tried to not remember this because it cause me anxiety so now it brings back a few more anxious and--


Q. [The complainant]--


A. Yeah. I’m so sorry, but--


Q. That’s okay. When Mr Ngo put his penis in your vagina after you’d said for him to stop, did he then do anything else to you?


A. Well, he doing the sexual activity.


Q. And whilst he was doing the sexual activity, did he touch you anywhere else on your body?


A. Yeah, he put his finger into my mouth.


Q. Did you say anything to him when he did that?


A. I tell him to stop, I don’t feel - I told him to stop and then he do, like, “Just shut up, bitch. Let me fuck you.” So, he - yeah, I feel dirty and ashamed, yeah.


204. In relation to the evidence directed to count 2, whilst it is clear that the applicant pulled the complainant to the bed in some manner, aspects of her evidence about the words she used were less so. In part that may well have been a product of the fact that English was not the complainant’s first language, and it is apparent from the transcript itself (and what was raised) that there were occasions of difficulty in understanding the complainant due to the manner in which she gave her evidence. So, in connection with that count, the word ‘stop’ used by her was initially directed to the applicant masturbating. It was then either repeated and directed to the applicant masturbating (“... he still continue doing it”) or about the applicant’s attempt to remove the complainant’s underwear – and, separately, irrespective of what act it was directed to, she may well not have used that word, but rather an expression such as “why did you do this” or “why would you do this to me”. Further, in relation to the complainant giving evidence of saying ‘stop’ on another occasion, the jury may well have understood this evidence to be directed to the applicant putting his finger into the complainant’s mouth, and not in relation to the penile/vaginal penetration. Given that the Crown’s case was put only on the basis that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse, the jury may have been left with a doubt as to whether, alone or in combination with the surrounding events, the Crown had established beyond reasonable doubt the degree of knowledge on the part of the applicant.


205. It is important in this context to note that, prior to the complainant completing her evidence in chief, the jury requested a copy of the transcript of the complainant’s evidence – something that is suggestive not only of the jury recognising, and being conscious of, the need to carefully scrutinise the evidence of the complainant in relation to each count, but also suggestive of the possible difficulties in the following aspects of the complainant’s evidence in connection with count 2.


206. In relation to count 4, although this evidence has also been earlier summarised, it is convenient to set out the complainant’s evidence in connection with the issue of consent:

Q. Did you at any point tell Mr Ngo to stop?

A. Oh, I repeatedly told him to stop. And then, because I got my phone in to do the..(not transcribable)..and I did tell him to stop and he keep ignoring, and that’s when I keep repeating it until he got me down to the mattress and start have a sexual activity.


Q. Okay, so you just said kept saying stop until he put you down on the mattress.


A. He forced me.


Q. Forced you down?


A. He grabbed me and he forced me down on the bed.


Q. Okay, so I want to ask you some questions about that. You say that he forced you down onto the bed. How did he do that?


A. By grabbing me on my shoulder, like around my - my - my shoulder. And then he just pull me and plop me down to the mattress and then he start using his finger to put into my like, my vagina, and start having sexual activity after that.


Q. Just before he put his finger into your vagina, [the complainant], did you say anything to him?


A. I told him to - well, I said - well, my - my - my - my response to him was all like, stop saying, don’t you ever use me as a sex slave. And he told me I’m a prostitute anyway, so he still want to do it. So, I told him I’m not a prostitute, and then he’s like, well, he say, just shut up, and just let me..(not transcribable)..and then he say like, oh, look, like you say something, but your vagina doesn’t like that. Because it’s been - sorry, you said, stop, but your vagina not say that. Because it’s wet.


Q. [The complainant], did he say that to you?


A. Yes, he did.


Q. Did he say that after he put his finger in your vagina?


A. Yes.


Q. And then after he put his finger in your vagina, what did he do next?


A. He start having a sexual - sexual intercourse with me and I was just feeling numb and again, and warning him to, just let him do, because I feel really like, powerless.


Q. When you say sexual intercourse, you mean he put his penis in your vagina?


A. Yes, he actually did.


Q. And when he did that, [the complainant], were you doing anything physical to him?


A. No, I didn’t because I just feeling numb, and I try to move around but he too strong for me, to defend, so I just sat and let because otherwise he want to slap me and he going to treat me like a sex slave because I read - not having any..(not transcribable)..daughter who asked and I don’t want to lie to her but I feel numb, I’d rather not think about it and just - sorry, just--


Q. Did you try and push Mr Ngo off you?


A. Sorry, can you say that again?


Q. Did you try and push Mr Ngo off you?


A. I try to push him a bit but then at the end, I just - I just feel there’s no point because I’m just feeling..(not transcribable)..I was already pushed down on my back already.


Q. When you tried to push him, did he say anything to you about that?


A. The actions - not comments, yeah, and something..(not transcribable)..I’m so sorry, I actually haven’t had a - recall much because I feel numb at the moment.


Q. [The complainant], can I ask you when Mr Ngo was having sex with you, when his penis was in your vagina, was he touching you anywhere on your body?


A. He touched my mouth, he put his fingers into my mouth.


Q. Anywhere else?


A. Yeah, in my body, from top to bottom.


Q. Do you remember how long he had sex with you for?


A. On that day, I can’t remember, on that day. It’s just too - it’s too repeat the action and I just - to be honest, I can’t even - this one, I can’t - something I want to forget, but this day, I only can remember that just happened and I can’t really remember much more.


Q. Do you remember if Mr Ngo was wearing a condom?


A. He did not wearing any condom at all because he told me that he wanted to have a baby and I said no.


207. As the Crown essentially submitted in relation to counts 4 and 5, in my view the complainant’s evidence in connection with lack of consent (and the applicant’s knowledge of this) was clearer, and appreciably stronger, than the evidence on count 2. For example, in connection with counts 4 and 5, the complainant’s evidence was that the applicant said: “... you said, stop, but your vagina not say that. Because it’s wet”.


208. Thus, in the ways described, I consider that the evidence about lack of consent and the applicant’s knowledge that the complainant did not consent, is a further basis to differentiate, and provide a plausible explanation for, the verdicts.


209. The applicant advanced two further arguments. The first was that the complainant “did not make a contemporaneous complaint of the allegations constituting counts 1-5 at any point in time to any person” (applicant’s submissions at [86]). It is not immediately obvious why the absence of this is material to an appeal ground directed to challenging the consistency of verdicts. In any event, it should be noted that the trial judge gave a direction to the jury, in line with s 294 of the Criminal Procedure Act, without complaint from the applicant’s trial counsel, and this ground of appeal involves no challenge to that direction.


210. The second was that the “only evidence in the trial as to the occasioning of counts 1-5 was the evidence of the complainant herself” and that there was an absence of “corroboration” (applicant’s submissions at [88]). Again, it is not immediately obvious why the absence of this in fact matters in connection with an appeal ground directed to challenging the consistency of verdicts. In any event, the trial judge gave a direction about this matter which took account of s 294AA of the Criminal Procedure Act, the correctness of which was not challenged.


211. In my view appeal ground 1 should be dismissed. There is “no affront to logic and common sense” suggesting a failure by the jury to perform the functions entrusted to it: Mackenzie at 368. Rather, to my mind, “far from providing an indication that a jury has fallen down its task ... [it provides] the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count”: AH v R [2019] NSWCCA 152 at [62].


Grounds 2 and 3


212. In relation to grounds 2 and 3, I have had the considerable advantage of reading the draft judgment of Adamson JA dealing with those grounds. I agree with her Honour’s reasons, and the orders proposed.

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