Citation: Singh v R [2025] NSWCCA 34
Court: Court of Criminal Appeal
Date: 12 March 2025
Judges: Garling J, Chen J, Sweeney J
Background
The applicant was convicted by a jury in the District Court of aggravated sexual intercourse without consent, following a trial in June 2023. The Crown's case was that the complainant, who had met the applicant on a dating site, lost consciousness after consuming alcohol at his home and woke to find him having intercourse with her without her consent. The applicant denied intercourse occurred at all, and put to the jury a version in which the complainant had attempted to force him to have intercourse.
The Crown's evidence at trial included the complainant's direct account, complaint evidence from her parents and workplace supervisor, DNA evidence, and medical findings consistent with injury to the complainant. The applicant's primary submission to the jury was that the complainant's memory was "patchy" and her evidence unreliable.
Following the jury's guilty verdict, the applicant was sentenced to six years' imprisonment with a non-parole period of four years. He appealed against his conviction on two grounds.
Legal Issues
- Whether the jury's guilty verdict was unreasonable or could not be supported by the evidence, given the complainant's acknowledged memory difficulties, internal inconsistencies in her account, and the nature of her initial complaints.
- Whether a miscarriage of justice arose from the trial judge's refusal to give a Mahmood direction (a direction addressing the jury's approach to an uncalled witness) in relation to a security guard known as Polly, who was not called by the Crown.
Decision
Ground 1: Unreasonable verdict
Chen J (with Garling and Sweeney JJ agreeing) held that the complainant's concessions about her "patchy" memory, including her descriptions of trying to "re-engineer" or piece together events, were entirely consistent with the Crown's case that she had lost consciousness. The court found that where the complainant expressed thoughts or beliefs about events, she had provided an explanatory basis for those views. These features of her evidence did not render the verdict unreasonable.
The court addressed the absence of an immediate complaint of "sexual assault," noting that the complainant initially described feeling "used" rather than sexually assaulted. This was unsurprising given she was still processing the events, and the court observed that complainants react to sexual assault in varied ways. The discrepancies and inconsistencies in the complainant's evidence were found to be immaterial to credibility and reliability, particularly given the strong corroborating evidence. Garling J added that, in his view, the guilty verdict was not merely open to the jury but was the only rational verdict open on the evidence.
Ground 2: Mahmood direction
A Mahmood direction is a jury direction addressing an uncalled witness, typically warning the jury not to speculate about what that witness might have said, or drawing inferences where a party has failed to call a material witness. The court found that no such direction was required here. The Crown had made clear in its opening that Polly would not be called, meaning there was no disappointed expectation that she would give evidence.
Critically, the court found that giving a Mahmood direction would actually have undercut one of the applicant's own arguments to the jury, namely that the jury should consider the content of the conversation between Polly and the complainant when assessing whether the complainant's complaint had transformed. There was also nothing before the trial judge or jury to suggest Polly was a material witness whose evidence could have affected the verdict. The absence of any application by trial counsel for such a direction further supported the conclusion that no miscarriage of justice arose.
Orders Made
- Leave to appeal against conviction granted.
- Appeal dismissed.
Key Takeaways
- Inconsistencies in a complainant's evidence arising from acknowledged memory gaps do not automatically render a jury verdict unreasonable, particularly where those gaps are explicable and the overall Crown case is strongly corroborated.
- A Mahmood direction is not required simply because a witness identified in a Crown opening was not called. The absence of a disappointed expectation that the witness would give evidence is a significant factor against any obligation to direct.
- Where the absence of a Mahmood direction actually assisted an aspect of the accused's case at trial, that absence is less likely to constitute a miscarriage of justice.
- The failure of trial counsel to request a particular direction does not automatically preclude a finding of miscarriage of justice on appeal, but the Court of Criminal Appeal confirmed it is a relevant consideration that tends against finding a perceptible risk of miscarriage.
- In dismissing the appeal, all three judges expressed no doubt about the applicant's guilt, with Garling J characterising the guilty verdict as the only rational conclusion available on the evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW)
Cases
- Dansie v The Queen (2022) 274 CLR 651
- De Silva v The Queen (2019) 268 CLR 57
- Decision Restricted [2024] NSWCCA 81
- Fantakis v R [2023] NSWCCA 3
- HCF v The Queen [2023] HCA 35
- Lee v R [2023] NSWCCA 203
- M v The Queen (1994) 181 CLR 487
- Mahmood v Western Australia (2008) 232 CLR 397
- Quinn v R [2023] NSWCCA 229
- Reed v R [2006] NSWCCA 314
- The Queen v Baden-Clay (2016) 258 CLR 308
- The Queen v Hillier (2007) 228 CLR 618
- VP v R [2021] NSWCCA 11
- Z (a pseudonym) v R [2022] NSWCCA 8
- Zhou v The Queen [2021] NSWCCA 278