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Court of Criminal Appeal 22 August 2023

Ngo v R

[2023] NSWCCA 201

Sexual offences

Citation: Ngo v R [2023] NSWCCA 201
Court: Court of Criminal Appeal
Date: 22 August 2023
Judge(s): Adamson JA at [1]; Ierace J at [116]; Chen J at [148]

Background

The applicant stood trial in the District Court on six counts arising from an intimate relationship that had ended in early 2020. The counts included two charges of masturbating in the complainant's presence, two charges of sexual intercourse without consent, one charge of digital penetration without consent, and one charge of breaking and entering. The relationship had been turbulent, involving multiple police call-outs and an apprehended domestic violence order made against the applicant in March 2020.

The jury acquitted the applicant on counts 1, 2 and 3 and convicted him on counts 4, 5 and 6. During the trial, the complainant gave a number of unsolicited, non-responsive answers that disclosed alleged prior discreditable conduct by the applicant, including references to drugs, non-consensual intercourse on uncharged occasions, and physical violence. The applicant's trial counsel applied to discharge the jury but the application was refused. No anti-tendency direction was sought by trial counsel in respect of that material.

The applicant sought leave to appeal on three grounds: that the verdicts were factually inconsistent; that the Crown's conduct at trial (including not putting the bad character evidence to the applicant in cross-examination) caused a miscarriage of justice; and that the trial judge's failure to give an anti-tendency direction in respect of the extraneous bad character evidence also caused a miscarriage of justice.

Legal Issues

  • Whether the acquittals on counts 1, 2 and 3 were factually inconsistent with the convictions on counts 4, 5 and 6, such that the convictions were unreasonable or could not be supported by the evidence.
  • Whether the Crown's failure to put the complainant's bad character evidence to the applicant in cross-examination, and failure to address it in closing, constituted a miscarriage of justice.
  • Whether the trial judge's failure to give an anti-tendency direction under s 95 of the Evidence Act 1995 (NSW) in respect of extraneous bad character evidence elicited during the complainant's testimony caused a miscarriage of justice.

Decision

Ground 1: Alleged inconsistency of verdicts

Chen J (Adamson JA agreeing) rejected this ground. The applicant argued that because count 2 and counts 4 and 5 all depended on accepting the complainant's evidence about non-consensual intercourse, an acquittal on count 2 was logically irreconcilable with convictions on counts 4 and 5. Chen J found that factual inconsistency must satisfy a test of logic and reasonableness, requiring the two verdicts to be incapable of standing together (at [184]). A not-guilty verdict does not necessarily mean the complainant was disbelieved; it may simply reflect a cautious approach to a heavy responsibility (at [192]).

The key differentiating factor was Exhibit 3, a photograph the applicant took of the complainant wearing a t-shirt and underwear on 13 April 2020, between the two sets of alleged offending. Trial counsel had described this photograph as "absolutely crucial" and deployed it to suggest the complainant's post-assault behaviour was inconsistent with having been sexually assaulted on 11 or 12 April 2020 (at [195]-[197]). This provided a rational basis for the jury to doubt the applicant's guilt on count 2 while remaining satisfied on counts 4 and 5 (at [193]-[198]). Chen J also found that the complainant's evidence about the absence of consent was clearer and appreciably stronger in relation to counts 4 and 5, including the applicant's remark that her "vagina" had not said stop (at [207]-[208]).

Ground 2: Crown's failure to put extraneous bad character evidence to the applicant

Adamson JA (Chen J agreeing) dismissed this ground. The Crown case is defined by its opening and closing addresses, and a prosecutor has no obligation to adopt, as part of its case, every piece of evidence given by a prosecution witness, particularly extraneous or non-responsive evidence not forming part of the Crown case (at [94]-[96]). The Crown was accordingly not obliged to put the complainant's additional allegations to the applicant in cross-examination or to address them in closing (at [96]). The reference in the Crown's closing to a "domestically violent relationship" was a contextual reference to the 8 March 2020 incident, not an invitation to tendency reasoning, and was covered by the existing anti-tendency direction about the apprehended violence order (at [97]).

Grounds 2 and 3: Failure to give an anti-tendency direction (majority and dissent)

This produced a two-to-one split. An anti-tendency direction is a direction that the jury must not reason from one act that the accused is more likely to have committed the acts charged, or is that kind of person (at [98]). Such a direction is not required in every case, and may even be prejudicial to an accused's case depending on trial strategy (at [99]).

Adamson JA, with Chen J agreeing, held that no miscarriage of justice arose from the absence of a further anti-tendency direction. Trial counsel had conscientiously listed the extraneous matters as grounds for discharge but did not seek a direction on most of them after discharge was refused (at [108]). The defence strategy was to challenge the complainant's credibility as a person prone to fabricating allegations, and an anti-tendency direction would have tended to undermine that case by acknowledging the possibility that the jury might accept some of the uncharged conduct (at [109]). This omission was therefore a legitimate forensic choice (at [109]). The jury's differentiated verdicts also indicated it had not engaged in tendency reasoning (at [107]).

Ierace J dissented. His Honour held that no inference was available from the transcript that trial counsel had turned her mind to seeking an anti-tendency direction and made a deliberate decision not to do so (at [141]). There was no rational tactical pathway by which the volume and seriousness of the extraneous allegations, including multiple uncharged instances of non-consensual intercourse, could assist the applicant (at [142]). The minimalist approach taken to those allegations in both examination of the applicant and closing address was inconsistent with a deliberate forensic choice to exploit them (at [143]-[145]). Ierace J would have quashed the convictions on counts 4, 5 and 6 and ordered a retrial (at [147]).

Orders Made

  • Leave granted pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.
  • Leave to appeal granted pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Appeal dismissed.

Key Takeaways

  • A factual inconsistency in mixed verdicts must render the verdicts logically irreconcilable: an acquittal on one count involving a single complainant does not compel the conclusion that the complainant was found to be untruthful for the purposes of all other counts (at [184], [192], [200]).

  • The Crown case is bounded by its opening and closing addresses; prosecutors bear no obligation under the rule in Browne v Dunn to put to an accused extraneous evidence given by a prosecution witness that does not form part of the Crown case (at [94]-[96]).

  • Where an accused's entire trial strategy depends on portraying a complainant as a fabricator, the failure to seek an anti-tendency direction in respect of uncharged discreditable conduct may constitute a legitimate forensic choice, not a miscarriage of justice, provided that conclusion is properly available on the trial record (at [99]-[109]).

  • Ierace J's dissent illustrates that the "deliberate forensic choice" inference is not available in every case: where a discharge application was brought on the basis of the extraneous material and counsel subsequently took a minimalist approach to it, the inference of deliberate strategy may be difficult to sustain (at [141]-[145]).

  • Mixed verdicts in sexual assault trials can reflect the jury's careful count-by-count evaluation of distinct evidence, including contextual evidence such as photographs or the relative clarity of consent-related testimony, rather than any generalised acceptance or rejection of a complainant's credibility (at [107], [198], [207]-[208]).

Legislation and Cases Referenced

Legislation
- 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
- 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