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Court of Criminal Appeal 8 September 2023

Pandamooz v R

[2023] NSWCCA 221

Sexual offences

Citation: Pandamooz v R [2023] NSWCCA 221
Court: Court of Criminal Appeal, NSW
Date: 8 September 2023
Judge(s): Adamson JA (principal judgment); Harrison J and Weinstein J agreeing

Background

The applicant was convicted by a jury on two counts of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences occurred in a bathroom at a Sydney nightclub in the early hours of a Saturday morning in May 2019. The complainant, who had been drinking during the evening, met the applicant on the dance floor. He led her to the men's bathroom, pulled her into a cubicle, and sexually assaulted her on two occasions before she was able to leave.

The sole issue at trial was consent. The complainant gave evidence that she did not consent and that she communicated her lack of consent to the applicant during the assaults. Critically, it was not the Crown's case that the complainant had been too intoxicated to consent. The applicant was not cross-examined on the complainant's intoxication. The trial was presided over by Culver DCJ in the District Court.

The applicant sought leave to appeal against his conviction on five grounds, each contending that the trial miscarried due to errors or irregularities in jury directions and the admission of certain evidence.

  • Whether the trial judge erred in her direction to the jury about intoxication as it related to consent, including whether the effect of s 61HE(8)(a) of the Crimes Act 1900 (NSW) should have been explained to the jury.
  • Whether the trial judge's response to a jury question about consent and significant intoxication amounted to directing the jury to decide a central factual issue in favour of the prosecution.
  • Whether the admission of audio recordings from two calls the complainant made to the 1800RESPECT sexual assault counselling line, which contained references to prior sexual assault and difficulty with intimacy, caused a miscarriage of justice.
  • Whether a series of other irregularities, including portions of the prosecutor's closing address inviting tendency reasoning, cumulatively occasioned a substantial miscarriage of justice.

Decision

Grounds 1 and 2 (intoxication and consent direction): During deliberations, the jury asked whether a person could legally consent while significantly intoxicated. The trial judge, with the agreement of both parties, responded by repeating the consent definition, reminding the jury of the complainant's evidence that she did not consent, and directing that intoxication could be considered when assessing the applicant's state of mind. The Court of Criminal Appeal found no error in this approach. Section 61HE(8)(a), which provides that consent given while substantially intoxicated may establish non-consent, did not arise on the facts because the Crown's case was not that the complainant consented while drunk. The trial judge's direction forestalled any risk of the jury convicting on an incorrect basis, and the direction could not have affected the verdicts the jury actually returned.

Ground 3 (direction favouring prosecution): The Court rejected the argument that the trial judge's reminder of the complainant's evidence amounted to directing the jury to resolve a central factual question in the Crown's favour. The reference to her evidence was explanatory: it clarified that the complainant did not say she had consented because she was drunk. Nothing in the trial judge's words bound the jury to accept that evidence.

Ground 4 (1800RESPECT call recordings): The audio recordings of the complainant's calls to the helpline were admitted into evidence and played to the jury. Parts of the recordings that should have been edited out included references to a prior sexual assault and difficulties with intimacy. The trial judge gave prompt remedial directions, agreed to by both parties. The Court found the risk of prejudice from these statements was relatively low and could not have affected the verdicts, particularly given the timely directions.

Ground 5 (cumulative irregularities): The Court considered all alleged irregularities together, including the portions of the prosecutor's closing address that could be read as an invitation to engage in tendency reasoning. The trial judge had given an immediate anti-tendency direction in each instance. Assessed cumulatively, none of the matters had any effect on the fairness of the trial or could reasonably be supposed to have affected the verdicts. The applicant had not lost a real chance of acquittal.

Orders Made

  • Leave granted to the applicant pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury direction on intoxication and consent does not miscarry a trial where the Crown's case was never that the complainant consented while intoxicated. In those circumstances, the effect of s 61HE(8)(a) of the Crimes Act 1900 (NSW) simply did not arise and need not have been explained to the jury.
  • Where a trial judge responds to a jury question by reminding the jury of a complainant's evidence, that will not constitute a direction to decide a central factual question in favour of the prosecution if the purpose and effect of the reminder is merely clarificatory.
  • Prompt remedial directions, given with the agreement of both parties, are capable of neutralising the risk of prejudice arising from the inadvertent admission of sensitive statements in recorded evidence.
  • In dismissing the cumulative irregularities ground, the Court of Criminal Appeal applied the principle from Trevascus v R (2021) 104 NSWLR 571 that a miscarriage of justice requires that the irregularities, taken together, could reasonably be supposed to have affected the verdicts or caused the applicant to lose a real chance of acquittal.
  • Where trial counsel endorsed the approach taken by the trial judge at every contested point, leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is required before any ground of appeal can be pursued, though the Court may grant it to ensure finality where grounds have received detailed consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HE, 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 293
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
- Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
- Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
- DJF v R [2011] NSWCCA 6
- DS v R [2023] NSWCCA 151
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Ngo v R [2023] NSWCCA 201
- Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
- R v Arnott (2009) 26 VR 490; [2009] VSCA 299
- Saunders v R [2022] NSWCCA 273
- Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
- Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104