Goundar v R [2024] NSWCCA 45

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Goundar v R [2024] NSWCCA 45 Hearing dates: 22 February 2024 Date of orders: 5 April 2024 Decision date: 05 April 2024 Before: Davies J at [1] Hamill J at [110] Sweeney J at [134] Decision: (1) Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021(NSW) in relation to grounds 1 and 3. (2) Grant leave to appeal ground 2. (3) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – where parties had been drinking heavily all day – where complainant was in and out of consciousness – where applicant stopped attempted anal penetration when asked – applicant resumed vaginal penetration – complainant said "Stop" multiple times – non-consensual penile/vaginal intercourse continued for around two minutes – where complainant made an immediate complaint to her mother – other early complaints – where mother's evidence disclosed an alleged complaint about anal penetration inconsistent with other evidence the complainant gave – whether trial judge erred by failing to direct jury on complaint evidence given by the complainant's mother – where Crown case never concerned anal intercourse – trial judge's summing up made clear penile/vaginal intercourse formed the basis of the charge – jury could have had no doubt what act constituted the offence – no miscarriage of justice – leave to appeal refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether by reason of inconsistencies and discrepancies the jury ought to have had a doubt – "inconsistencies" entirely explicable by reason of the complainant's intoxication – central allegation consistent since time of first complaint – greater detail emerged in subsequent complaints – immediacy and distress of first complaint sufficient in nature and quality to satisfy jury beyond reasonable doubt CRIME – appeals – appeal against conviction – whether trial judge erred by failing to direct on the accuracy and reliability of the complainant's account – where trial judge gave standard direction in accordance with s 293A of the Criminal Procedure Act – where applicant's trial counsel sought no further direction – direction now proposed adds nothing to what the trial judge said – no miscarriage of justice – leave to appeal refused – appeal dismissed Legislation Cited: 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 Cited: 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 Texts Cited: Nil Category: Principal judgment Parties: Shane Goundar (Applicant) The King (Respondent) Representation: Counsel: G Smith SC & R Shafiq (Applicant) S Lind (Respondent)