Citation: Nguyen v R [2022] NSWCCA 126
Court: Court of Criminal Appeal, New South Wales
Date: 17 June 2022
Judges: Beech-Jones CJ at CL (with R A Hulme J and Adamson J agreeing)
Background
The applicant was convicted after a jury trial of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The complainant, a Vietnamese national in her early twenties, had agreed to meet the applicant after social media contact, initially to visit a mobile phone outlet. The applicant instead drove her to a beach, dinner, and then to his apartment block in Cabramatta, where the complainant alleged he penetrated her twice in a parked car while she protested. The applicant gave evidence that the complainant had consented.
In the days following the alleged assault, the complainant and the applicant exchanged text messages. These included the complainant asking the applicant to take her to sign up for a mobile phone plan, and a message stating she wanted "a genuine relationship, not a one-night stand." The complainant explained to the jury that she sent these messages to find out what kind of man the applicant was, and whether he had only sought to take advantage of her. She said she had initially decided to stay silent about the assault.
The complainant later spoke to her former boyfriend in Vietnam, then approached police the following day. DNA evidence confirmed sexual intercourse had occurred. The ex-boyfriend was never called as a witness. The trial judge, notably, expressed a view in the jury's absence that the Crown case was weak given the text messages. The jury nonetheless returned a guilty verdict. The applicant sought leave to appeal on the ground that the verdict was unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the text messages exchanged after the alleged assault must have left the jury with a reasonable doubt as to the applicant's guilt
- Whether the trial judge's in-chambers assessment that the Crown case was weak affected the jury's advantage over the Court of Criminal Appeal in evaluating the complainant's credibility and reliability
- Whether the absence of evidence from the complainant's ex-boyfriend meant the jury ought to have entertained a reasonable doubt as to guilt
Decision
On the text messages, Beech-Jones CJ at CL (with whom the other judges agreed) held that the messages were not independent evidence undermining the complainant's account. Rather, they were potentially inconsistent statements for which the complainant provided an explanation. That explanation was neither improbable nor inherently unlikely, and any doubt it raised about her credibility or reliability was one the jury was capable of resolving through the advantage of seeing and hearing her give evidence.
The Court emphasised that stereotypical assumptions about how victims of sexual assault respond to trauma must be avoided when assessing challenges to a jury's verdict. The complainant's conduct in continuing to message the applicant after the alleged assault did not, of itself, undermine the reasonableness of the jury's acceptance of her evidence.
On the trial judge's remarks, the Court noted there was nothing improper in a trial judge expressing views about case strength in the jury's absence. However, the trial judge was the judge of the law and the jury were the judges of the facts. The trial judge's views were therefore entirely irrelevant to the appeal.
On the absence of the ex-boyfriend's evidence, the jury had received a Mahmood direction (an instruction that they were entitled to take the absence of a witness into account when assessing whether the Crown had proved its case). Nothing in the evidence about the ex-boyfriend gave rise to a basis for concluding that his absence warranted a reasonable doubt. The Court also rejected an unarticulated suggestion that the complainant had fabricated her account to protect her relationship with the ex-boyfriend, noting this theory was never put to the complainant and lacked evidentiary support.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Post-assault communications between a complainant and an accused that appear inconsistent with the complainant's evidence do not automatically generate a reasonable doubt; where an explanation is provided, the jury's advantage in assessing the witness's credibility is a significant factor the Court of Criminal Appeal will respect.
- Stereotypical assumptions about how victims of sexual assault are expected to behave must be avoided when appellate courts assess whether a conviction is unreasonable.
- A trial judge's private assessment of the strength of the Crown case, expressed in the jury's absence, is irrelevant to the determination of an appeal against conviction; the jury are the sole judges of the facts.
- Where a Mahmood direction is given regarding an absent witness, the mere fact that a potentially relevant witness did not give evidence does not, without more, require the conclusion that the jury ought to have entertained a reasonable doubt.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction resting almost entirely on a complainant's evidence can be sustained where the jury's acceptance of that evidence was open on the evidence as a whole.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61HE(3)(a), 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Rao v R [2019] NSWCCA 290
- Neto v R [2020] NSWCCA 128
- Maughan v R [2020] NSWCCA 51