Citation: Goundar v R [2024] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 5 April 2024
Judges: Davies J (leading judgment), Hamill J, Sweeney J
Background
The applicant was convicted by a jury in February 2023 of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The incident occurred at a motel on the Central Coast in April 2021, after both the applicant and the complainant had been drinking heavily throughout the day. The applicant was sentenced to two years' imprisonment with a non-parole period of twelve months.
The complainant gave evidence that she was in and out of consciousness during the relevant events. At one point she woke to find the applicant attempting anal penetration, said "Stop", and he complied. He then resumed penile-vaginal intercourse. The complainant began crying and said "Stop" multiple times, but the applicant continued for approximately two minutes. That penile-vaginal intercourse formed the sole basis of the charge.
The complainant made an immediate and distressed complaint to her mother, followed by early complaints to a motel employee, a triple-0 operator, police, and a doctor. Importantly, the mother's evidence included an alleged complaint about anal penetration that was inconsistent with other evidence the complainant had given. At trial, the applicant's counsel had that inconsistency placed before the jury by tendering a paragraph of the mother's statement; no further direction on the point was sought.
Legal Issues
- Whether the trial judge's failure to direct the jury on the complaint evidence given by the complainant's mother occasioned a miscarriage of justice (Ground 1)
- Whether the verdict was unreasonable or unsupported by the evidence, given alleged inconsistencies and discrepancies across the complainant's various accounts (Ground 2)
- Whether the trial judge's failure to give a complete direction on the complainant's honesty, reliability, and accuracy in vital respects occasioned a miscarriage of justice (Ground 3)
Decision
Ground 1: Complaint direction. The Court found no miscarriage of justice arising from the absence of a specific jury direction about the mother's complaint evidence. The trial judge's summing up, and both counsel's addresses, consistently identified penile-vaginal intercourse as the sole basis of the charge. The jury could not have been in doubt about which act constituted the offence. Additionally, the inconsistency about anal penetration was placed before the jury at the applicant's counsel's own request and was forensically useful to the defence. No further direction had been sought at trial.
Ground 2: Unreasonable verdict. Where a conviction rests principally on the complainant's account, the primary question is whether inconsistencies and discrepancies were of a kind that ought to have generated a doubt. The Court found that the inconsistencies here were explicable by the complainant's significant intoxication. The central allegation had been consistent since the first complaint, with greater detail emerging in subsequent accounts. The immediacy and visible distress of the first complaint, combined with the fundamental consistency of the complainant's subsequent accounts, satisfied the Court that no reasonable doubt arose. Leave to appeal was granted on this ground but the appeal was dismissed.
Ground 3: Reliability direction. The trial judge gave standard directions under s 293A of the Criminal Procedure Act 1986 (NSW), including directions requiring the jury to assess the truthfulness and reliability of the evidence. The Court found that the summing up as a whole adequately addressed these matters. The further direction now proposed by the applicant would have added nothing to what the trial judge had already said. No miscarriage of justice was established.
Orders Made
- Leave to appeal refused on Grounds 1 and 3
- Leave to appeal granted on Ground 2, but the appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of a specific jury direction on complaint evidence will not produce a miscarriage of justice where the trial as a whole, including counsel's addresses and the summing up, made the relevant issue sufficiently clear to the jury.
- Where a trial counsel deliberately places an inconsistency before the jury for forensic advantage and seeks no further direction about it, that circumstance weighs significantly against a later appellate argument that the absence of such a direction was a miscarriage of justice.
- For an unreasonable verdict ground based principally on inconsistencies in a complainant's accounts, the central question is whether those inconsistencies ought to have generated a doubt; inconsistencies fully explicable by intoxication will not necessarily satisfy that threshold.
- Sufficient evidence existed, in the immediacy and distress of the first complaint and the fundamental consistency of the complainant's core account across multiple subsequent complaints, to support the jury's verdict beyond reasonable doubt.
- Standard directions given under s 293A of the Criminal Procedure Act 1986 (NSW) on the truthfulness and reliability of evidence will ordinarily satisfy the requirement to direct the jury on a complainant's accuracy; an appellate court is unlikely to find error where no additional direction was sought at trial and the proposed direction would have added nothing to what was given.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 61I
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW) ss 293A, 294AA
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Greenhalgh v R [2017] NSWCCA 94
- Hanna v R [2023] NSWCCA 182
- Kumar v R [2023] NSWCCA 156
- Latu v R [2023] NSWCCA 19
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Rubinstein v R [2023] NSWCCA 288
- Williams v R [2021] NSWCCA 25
- Z (a pseudonym) v R [2022] NSWCCA 8