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Court of Criminal Appeal 25 June 2021

Shanmugam v R

[2021] NSWCCA 125

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL TOUCHING WITHOUT CONSENT SEXUAL INTERCOURSE WITHOUT CONSENT JUDGE ALONE TRIAL

Citation: Shanmugam v R [2021] NSWCCA 125
Court: Court of Criminal Appeal
Date: 25 June 2021
Judges: Harrison J (primary reasons); Beech-Jones J (agreeing); Cavanagh J (agreeing, with additional remarks)

Background

The appellant was convicted on 27 August 2020 by Haesler SC DCJ, following a judge-alone trial in the District Court, on five counts: two of sexual touching without consent, one of attempted sexual intercourse without consent, and two of sexual intercourse without consent, all arising from events on the morning of 7 January 2019.

The offences occurred at the complainant's flat in Wollongong after a staff Christmas party. The appellant, who worked with the complainant at a function centre, had returned to her flat along with a mutual colleague. The complainant's evidence was that the appellant committed the offences while she was lying in bed, after the colleague had moved to the bathroom to vomit.

Following the incident, the complainant sent a text message reading "Help" to the colleague and later confronted the appellant by text message. The appellant's text responses, in which he extensively apologised and described his behaviour as "extremely wrong," formed a central plank of the Crown case.

  • Whether the conviction could be supported having regard to the evidence, including alleged inconsistencies and implausibilities in the complainant's accounts
  • Whether the aggregate sentence of 5 years imprisonment with a 3-year non-parole period was manifestly excessive or failed to apply the totality principle
  • Whether the trial judge was required to give himself a warning under section 165B of the Evidence Act 1995 about the disadvantage caused to the appellant by the delayed complaint

Decision

Ground 1: Conviction and the evidence. Harrison J applied the approach from Pell v The Queen, under which the Court of Criminal Appeal examines whether, notwithstanding the trial judge's acceptance of the complainant as credible and reliable, a rational tribunal ought nonetheless to have entertained a reasonable doubt. The trial judge accepted the complainant's account and was entitled to do so. Cavanagh J, after independently examining the record, concluded that minor matters raised by the appellant, including a timing issue, a slight delay issue, and variations in how the complainant described events to different people, did not require the trial judge to entertain a reasonable doubt once the complainant's evidence was accepted.

Ground 3: Warning under section 165B. This provision requires a judge-alone trial judge to warn himself about the forensic disadvantage caused by delay in complaint, but only where requested by a party. The appellant's counsel had not requested such a warning at trial, and the appellant sought leave to raise the ground on appeal. Harrison J refused leave. Even if the ground had been open, the delay was not substantial and, given the appellant's own text messages admitting to wrongful behaviour, there was no significant forensic disadvantage to him that the absence of a warning could be said to have caused.

Ground 2: Manifest excess in sentence. Harrison J found the aggregate sentence of 5 years with a 3-year non-parole period was neither unreasonable nor plainly unjust. The sentencing judge had found no contrition, in part because the appellant raised a consent defence and made submissions at sentence that the complainant bore some responsibility. The sentencing judge's observations about the consequences of the offending for the appellant and the community interest in retributive and vindicatory sentencing for non-consensual sexual offences were accepted as appropriate. The totality challenge was also rejected.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but appeal dismissed
  • Leave to rely on Ground 3 refused

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that minor inconsistencies or variations in a complainant's accounts do not necessarily require a tribunal of fact to entertain a reasonable doubt, provided the complainant's evidence has been accepted as credible and reliable overall.
  • Under section 165B of the Evidence Act 1995, a judge-alone trial judge is required to give a forensic disadvantage warning about delay in complaint only when a party requests it; the absence of such a request at trial is a significant obstacle to raising the point on appeal.
  • The appellant's own apologetic text messages, in which he acknowledged wrongful conduct, substantially reduced the forensic weight of any delay in complaint as a point of disadvantage.
  • A finding of no contrition at sentencing can be supported where the offender runs a consent defence and, at the sentencing hearing, suggests the complainant bore some responsibility for the offences.
  • Sufficient evidence existed to sustain all five counts, including through the combination of the complainant's testimony and the appellant's post-incident text communications.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC, 344A
- Evidence Act 1995 (NSW), s 165B

Cases
- Pell v The Queen (2020) 268 CLR 123
- Binns v R [2017] NSWCCA 280
- Liberato v The Queen (1985) 159 CLR 507
- Morris v The Queen (1987) 163 CLR 454
- Pearce v The Queen (1998) 194 CLR 610
- RP v R [2015] NSWCCA 215
- Williams v R [2021] NSWCCA 25
- R v Shanmugam [2020] NSWDC 482 (trial decision)
- R v Shanmugam (No 2) [2020] NSWDC 555 (sentencing decision)