Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bandao v R; Bruce v R [2018] NSWCCA 181 Hearing dates: 23 July 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Before: Hoeben CJ at CL at [1]; Price J at [214]; Wilson J at [215] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeal – five counts of non-consensual sexual intercourse – applicants acquitted of four counts but convicted of one – Crown case depended on finding of joint criminal enterprise – complainant's evidence affected by her intoxicated state – Crown case dependent upon evidence of co-offender – conversation between witness and complainant unlawfully recorded – recorded conversation used in cross-examination of complainant – Crown provided copy of recorded conversation to complainant during her cross-examination – whether Crown's conduct caused a substantial miscarriage of justice – whether failure to discharge jury gave rise to a substantial miscarriage of justice – whether trial judge erred in failing to grant a permanent stay of proceedings – whether verdict of jury unreasonable and cannot be supported having regard to the evidence – whether insufficient evidence to establish joint criminal enterprise – appeals dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 61 Evidence Act 1995 (NSW) – ss 27, 29, 38, 41, 43, 45, 128, 138, 165 Legal Profession Uniform Conduct (Barristers) Rules 2015 Listening Devices Act 1984 (NSW) – s 5(1) Surveillance Devices Act 2007 (NSW) – ss 7, 11,12 Cases Cited: Calleija v R [2012] NSWCCA 37 Dhanhoa v R [2003] HCA 40; 217 CLR 1 Dickson v R [2017] NSWCCA 78 Elwood v R [2016] NSWCCA 18 Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 House v The King [1936] HCA 40; 55 CLR 499 Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 Kees Langelaar v R [2016] NSWCCA 143 Lee v R [1998] HCA 60; 195 CLR 594 Libke v R [2007] HCA 30; 230 CLR 559 Matthews v R [2013] NSWCCA 187 Medich v R [2015] NSWCCA 281 Nudd v R [2006] HCA 9; 80 ALJR 614 R v Birks [1990] 19 NSWLR 677 R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 R v Edwards [2009] HCA 20; 83 ALJR 717 R v MacKenzie [1996] HCA 35; 190 CLR 348 R v Stewart [2001] NSWCCA 260 R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228 R v Xie (No 4) [2014] NSWSC 500 Regina v James [1999] NSWCCA 191 Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 SKA v The Queen [2011] HCA 13; 243 CLR 400 Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 TK v R [2009] NSWCCA 151; 74 NSWLR 299 TKWJ v R [2002] HCA 46; 212 CLR 124 Tootle v R [2017] NSWCCA 328 WC v R [2015] NSWCCA 52 Whitehorn v R [1983] HCA 42; 152 CLR 657 Category: Principal judgment Parties: Loyd Bandao – Applicant James Bruce – Applicant Regina – Respondent Crown Representation: Counsel: Dr A Hughes – Applicant Bandao S Kluss – Applicant Bruce E Balodis – Respondent Crown Solicitors: King & York – Applicant Bandao King & York – Applicant Bruce Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2015/1868082015/183753 Publication restriction: Non-publication order in relation to the identity of the complainant. Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 July 2017 Before: Colefax SC DCJ File Number(s): 2015/186808 2015/183753 Judgment 1. HOEBEN CJ at CL: The applicants, Lloyd Bandao and James Bruce, (to whom I will refer as Bandao and Bruce) stood trial on an indictment charging each of them with four counts of aggravated sexual assault in company, contrary to s 61JA of the Crimes Act 1900 (NSW), and Bruce individually with one count of aggravated sexual assault, contrary to s 61J of the Crimes Act. 1. The wording of the offences was that each of the applicants had engaged in four counts of sexual intercourse on or about 21 June 2015 with the complainant (AB) without her consent, knowing she was not consenting and for a period of time after the commission of the offence, depriving the complainant of her liberty. As indicated, Bruce had a fifth count on the indictment not referable to Bandao. 2. Each of the first four counts on the indictment had an alternative which did not contain the element of deprivation of liberty. 3. The Crown case was that the applicants and Billy Joe Alcazar (Alcazar), as part of a joint criminal enterprise, sexually assaulted the complainant. The acts of penetration were particularised as follows: Count 1 – Bandao penetrated the mouth of the complainant with his penis. Count 2 – Bruce digitally penetrated the complainant's vagina. Count 3 – Alcazar had penile-vaginal intercourse with the complainant. Count 4 – Bandao had penile-vaginal intercourse with the complainant. Count 5 – Bruce penetrated the complainant's mouth with his penis, after Bandao and Alcazar had left his presence. 1. The trial commenced on 21 March 2017 before Judge Colefax SC DCJ and a jury of twelve. Mr Lawrence appeared on behalf of Bandao and Mr Trevallion appeared on behalf of Bruce. At the conclusion of the evidence, his Honour entered a verdict by direction in favour of the applicants on Count 4. The jury retired to consider their verdicts on 28 April. On 2 May 2017 the jury returned verdicts of not guilty in respect of Counts 1, 2 and 5. The jury returned a verdict of not guilty for each applicant in respect of Count 3, but found the applicants guilty of the alternative to Count 3. 2. The terms of the alternative count were: "On or about 21 June 2015 at Blacktown in the State of New South Wales while in the company of [each other] and another male [the applicants] had sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting." 1. Bandao seeks leave to appeal from this conviction on the following grounds: Ground 1 – The Crown prosecutor's conduct in respect of the secret recording of the complainant so fundamentally affected the nature of the trial such as to cause a substantial miscarriage of justice. Ground 2 – That a substantial miscarriage of justice occurred by reason of the failure of counsel for the applicant to apply to discharge the jury. Ground 3 – That the trial judge erred in failing to grant a permanent stay of proceedings, or in the alternative, by failing to discharge the jury. Ground 4 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Counts 1 and 2. 1. Bruce seeks leave to appeal from this conviction on the following grounds: Ground 1 – The trial judge erred in failing to grant a permanent stay of proceedings. Ground 2 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of counts 1 and 2, the primary Count 3 and Count 5. CROWN CASE AND EVIDENCE 1. The complainant went with a friend, Patricia Tejada, to premises in Blacktown where Bandao lived with his parents. Bandao was Ms Tejada's boyfriend. Bandao, Ms Tejada, Bruce and Alcazar collected the complainant from her house where she lived with her parents and took her to Bandao's home. 2. On the way they purchased some alcohol, which they later consumed. Both the complainant and Ms Tejada became intoxicated. At about 10pm Ms Tejada began to feel unwell as a result of the consumption of alcohol. It is common ground that the complainant accompanied her to a small outside toilet room where Ms Tejada commenced vomiting. The complainant also began vomiting soon after. Some time later, Bandao assisted Ms Tejada to leave the toilet room and seated her on grass in the backyard. 3. It was the Crown case that at that point Alcazar, Bruce and Bandao entered the small toilet room wherein the acts alleged in the indictment were said to have taken place. The Crown asserted that before the sexual acts occurred, the complainant had been deprived of her liberty, either by one or more persons putting their hands on her physically to restrain her, or by one or more of them blocking the exit from the toilet. 4. It was alleged that at the time of the sexual assaults a number of items of the complainant's clothing and hair extensions were forcibly removed. It was the Crown case that following the offences, the complainant was placed in Bruce's car and driven home by Bandao with Bruce and Alcazar also in the car. 5. The case put forward on behalf of Bandao was that he did not commit the act alleged in Counts 1 and 4 and was not present for the commission of the acts in Counts 2 and 3. His case was that he was outside the toilet room providing assistance to Ms Tejada and only approached the toilet room on two occasions – the first to assist Ms Tejada to the grassed area and the second to say to Alcazar and Bruce "this is not how we do things". 6. Bruce's case was that he did not commit the acts alleged. He did, however, admit that he was in the toilet room kissing the complainant a short time before the alleged sexual offences occurred. The complainant's evidence 1. The complainant commenced her evidence on 23 March and it was completed on 28 March 2017. 2. The complainant accompanied Ms Tejada to the toilet room at the rear of the premises because Ms Tejada had begun to feel ill. The complainant then became ill herself and commenced to vomit. She became aware that there were other people in the toilet room. She was able to identify one of those persons as Alcazar. 3. She felt her body being touched and was picked up and prevented from leaving the toilet room. She continued to try to push these people away. She was saying "No". One of them said "You know you like it". She denied that Bandao had come to the door of the toilet room and said "This is not how we do things". 4. When asked what happened next the complainant said "I don't really recall a lot of what happened in the toilet. I just remember finding myself outside on the ground". There was evidence from a pharmacologist that the complainant's blood alcohol content at 10pm on 21 June 2015 was most likely 0.174 grams of alcohol in 100ml of blood and the range was between 0.122 and 0.242. The most likely concentration at 11pm was 0.158. The pharmacologist's evidence was that at blood alcohol concentrations from 0.14 percent and certainly above 0.2 percent, memory fragmentation, whereby a memory of an event is only partial, can occur. The pharmacologist said that memories can be revived or triggered if memory has been fragmented. 5. The complainant was able to provide some detail. She was held. Her bra but not her shirt was removed. Her jeans and underpants were removed. As she sat, her mouth was penetrated by a penis. By the evidence of skin colour the complainant was prepared to accept the possibility that Alcazar had done this act. Alcazar denied that his penis was in the complainant's mouth. The complainant said that she was bent over and her vagina was penetrated from behind. 6. After the complainant refreshed her memory from her police statements, she gave evidence that she saw "glimpses of specific faces behind me". She first saw Alcazar, then Bandao and then Bruce. She said that there were two males "which I have a hard time distinguishing. They were trying to penetrate my vagina .... with fingers, hands, and I kept saying – l was saying 'it hurts. It hurts'". She was "pretty sure" that these two males were Bandao and Alcazar (AB 642). 7. After the complainant again refreshed her memory from her police statements, she gave evidence that Bruce had said "She just sucked my dick". When cross-examined by counsel for Bandao, she "vaguely" remembered that when Alcazar had his hands underneath her underpants she had glimpsed Bandao at the door of the toilet room. After that she turned away and she did not know whether Bandao had left the toilet room. 8. In cross-examination the possibility that Alcazar had committed all of the sexual acts was put to the complainant. She could not be sure whether he had because she was intoxicated. She accepted that she could not be sure whether Bandao had put his fingers in her vagina. 9. In further cross-examination by counsel for Bandao the complainant was asked "At the time you were sexually assaulted that is with the penis in your mouth [Bandao] wasn't there?". She answered "I guess not, no". She said that she did not know whether Bandao was present when there was penile-vaginal intercourse occurring. 10. The complainant was pretty sure that Bruce was not in the toilet room when she saw him. "It [the toilet room] was really small". She was not sure that when she saw Bruce, it was when sexual activity was occurring in the toilet room. It was put on behalf of Bruce that before any indecent acts were performed in the toilet room she and Bruce had kissed. She denied that. 11. The complainant described crawling out of the toilet room although in cross-examination she accepted that Bandao had put on her underpants. Bandao walked her to a car. The complainant gave evidence of sitting in the back seat of a car while Bandao drove. Alcazar and Bruce, at different times on the trip, indecently assaulted her. Bandao said "stop it". Bandao took her back to her house. The complainant gave evidence that she specifically remembered that there was a stop when Bruce and Alcazar changed seats in the car. Alcazar denied that he was touching her and that Bandao told him to stop. 12. The complainant was seen at Westmead Hospital by Nurse Newland. Ms Newland examined the complainant at 3.30am on 22 June 2015, approximately five hours and ten minutes after the assault. During the examination the complainant was accompanied by her mother and by a sexual assault counsellor. 13. The history taken by Nurse Newland from the complainant was that her vagina had been digitally penetrated by four men while in the toilet room. All four men then had penile-vaginal intercourse with her. She named Bandao, Bruce and referred to the unknown male as "Mr Laurean". She denied penile-oral penetration. She complained of pain in the genital area and an abrasion was located on her vaginal area. 14. The complainant was unsure whether she had nominated Mr Hradavec as one of her assailants but accepted that she had told police that he was an assailant. Senior Constable Boyd confirmed that the complainant had nominated Hradavec, as well as Alcazar, Bruce and Bandao, as taking turns to assault her. Her statement recorded that she had been assaulted by four males. The recorded conversation 1. Mr Trevallion, counsel for Bruce, commenced cross-examining the complainant on the afternoon of 28 March. It was put to the complainant that she had met with Ms Tejada on 2 July 2015 at Parramatta. The complainant agreed that she had. It was put to her that various details about the evening of 21 June 2015 were supplied to her by Ms Tejada. The complainant agreed. Unknown to the complainant, Ms Tejada had recorded this conversation. 2. It was during the complainant's cross-examination by Mr Trevallion that it was revealed that Ms Tejada had recorded the conversation which took place on 2 July 2015. The complainant participated in a further recorded interview with police the following day, 3 July 2015. The complainant admitted that she had lied to police on 3 July 2015 when she denied meeting anyone from the party, particularly Ms Tejada. 3. In the cross-examination by Mr Trevallion, before the existence of a recording was revealed, the complainant had been asked about her meeting with Ms Tejada. In response to the manner in which she had spoken with Ms Tejada, the complainant said: "There were some things that she said that did fill in my gaps. Some things were, I didn't agree to which I didn't tell her at the time being her, given her relationship with [Bandao] but there were some things she filled in my gaps." (T 213) 1. In the recorded conversation Ms Tejada told the complainant that Bruce had said "She sucked my dick, brah". That was an assertion, allegedly by Bruce about which the complainant informed the police on 3 July 2015. The complainant's evidence, in relation to that was "I kinda remember that, but I don't remember who it was" (T 406.10). She agreed that she obtained that information from Ms Tejada although she said that she was not wholly dependent on Ms Tejada for identifying whose voice it was. 2. In the recorded conversation there was reference to the drive back to the complainant's house. On the following day, 3 July 2015, the complainant informed police about what had occurred during that drive. She explained at trial that Ms Tejada had refreshed her [the complainant's] memory on that issue. 3. Most significantly, the recorded conversation included the complainant telling Ms Tejada that Bandao had not involved himself in any criminality (T 456.23). Later in the trial, the complainant gave evidence that this was not correct and that she had said this because Bandao was Ms Tejada's boyfriend. 4. In the recorded conversation the complainant also referred to Alcazar's penis having been in her mouth. 5. The complainant had listened to the recorded conversation before she was further cross-examined by counsel for Bandao. Her explanation of her denials in the recorded conversation of Bandao's involvement in the offending was the subject of a warning pursuant to s 165 of the Evidence Act 1995 (NSW). That warning was given not only in the course of her evidence (AB 1006) but also in his Honour's summing up. 6. After the complainant heard the recorded conversation when she was being cross-examined by Mr Lawrence, on behalf of Bandao, she was asked whether what she told Ms Tejada in the recorded conversation was said honestly. The cross-examination then proceeded as follows: "Q. In terms of the sexual assault that you will recall. Were you honest with her in relation to the sexual assault? A. Yeah. I told her that what happened on my end and she was telling me what she understood from her perspective. Q. Every bit you told her in relation to the sexual assault, every detail, is correct? Would you agree with that? A. I wouldn't say "Every detail" of what I said was true. I guess there were some things that were unclear as well. Q. What parts were unclear? A. I don't know, there were – it was a long conversation, so it's kind of hard for me to specify. Q. That conversation, relating to the sexual assault— A. Yes. Q. What happened to you -- A. Yes. Q. – in the toilet? A. Yes. Q. I'll confine it to that. What happened to you in the toilet? A. Sorry, what was that? Q. What happened in the toilet on 24 June 2015? CROWN PROSECUTOR: 21st. LAWRENCE: 21st sorry, thank you, Mr Crown. Q. On 21 June 2015? A. Yes. Q. Is that part, the entirety of that part of what happened in the toilet, and what you told Patricia Tejada, true? A. I would say what I said in the statement, in my first statement was true. I didn't have to tell her everything that I said word for word that I stated in my statement. I didn't have to tell her that, she's not a police officer. So, doesn't deserve to know every single thing. Q. No, I'm not asking you that. I'm asking you – A. There were some things that I didn't tell her. Q. There are things you didn't tell her, but what you told her – A. Yeah. Q. Let's go back a question so we can get the answer on the transcript. A. Yes. Q. There were things you did not tell her? A. Yep. Q. The things that you did tell her, were they entirely true? A. I probably wouldn't say, "Yes". Q. What part would you say probably not, "Yes"? A. About her boyfriend at that time, I was trying to fabricate that. Q. You were trying to fabricate that? A. From her. Q. Sorry? A. I was trying to lie to her about that, yes. Q. Why were you trying to lie to her about it? A. I didn't want to hurt her. Q. What part did you lie to her about? A. Me telling her that I didn't see her boyfriend being there. Q. I want you to explain what you mean by "I did not see her boyfriend being there"? A. Well, like I said in my statement, I did look back and saw [Bandao] but I didn't tell her that I did." (T 423.20 – 424.40) 1. The effect of the cross-examination of the complainant by Mr Trevallion, on behalf of Bruce, was that much of the detail and additional information which she gave to police in her statement of 3 July had come from what she had been told by Ms Tejada the day before. The complainant did say, however, that she was not entirely dependent on what she had been told by Ms Tejada and had some memories of these events herself. She accepted that Ms Tejada had filled in some gaps in her recollection of what had happened on the night of the assault. Alcazar 1. Billy Joe Alcazar gave evidence. He was in custody after pleading guilty to three counts of sexual intercourse with the complainant without her consent and knowing she was not consenting in the company of Bandao and Bruce. He was serving a total sentence of 6 years and 6 months imprisonment. He had received discounts on his sentence for his guilty plea and his past assistance to police. He received a further discount for future assistance by giving evidence in this trial. Because of the fragmented nature of the complainant's recollection, the Crown case depended upon the evidence of Alcazar. 2. DNA evidence established that Alcazar had ejaculated inside AB's vagina. Bandao, Bruce and Hradavec were excluded. Alcazar said that everyone except Hradavec was drunk and that the complainant and Ms Tejada were "spewing" in the toilet. Bandao took Ms Tejada from the toilet room. He helped her up and she walked out and sat on grass between the table, where the drinking had occurred, and the toilet room. 3. Alcazar and Bruce went into the toilet room. They did not speak before they entered and Alcazar could not explain why they entered. The complainant was standing, bent over and vomiting into the toilet. Alcazar and Bruce were close to each other. The toilet room door was ajar. 4. Alcazar's evidence about what then happened is important. The following are relevant extracts: "Q. What happened when you and Mr James Bruce entered that toilet room? A. Her and James started hooking up and I was rubbing her up. Q. We'll do that one at a time. Her and James started "Hooking up", what do you mean by that? A. Kissing. … Q. Was there anything said by anyone at this stage? A. No. Q. You said that Mr James Bruce was kissing her and you said that you were touching her up? A. Yep. … Q. Where abouts on her body were you touching her up? A. Probably her arse and her vagina, breasts and that. … Q. What if anything did Mr James Bruce at this stage that you were touching her breasts, her arse and vagina, as you've described. What was he doing? A. Kissing her up, just rub – feeling her and that, same as me. Q. Where was he feeling her? A. Just on the arse and that. Q. What was he using to feel her? A. His hands. Q. Did you see that? A. Yep. Q. What was said at this stage? A. Nothing. … Q. What happened next? A. Lloyd [Bandao] come in. Q. Where did he go? A. In the toilet. Q. Did he go to the toilet or did he -- A. After he brought [Ms Trejada], yeah he comes back in. Q. He comes back in? A. To the end of the toilet next to the toilet bowl. … Q. Is he behind [the complainant]? A. Yeah. Q. Did you see him do anything? A. Yep. Q. What did you see him do? A. Just well – ripped her pants off and she started sucking him off. Q. Who ripped whose pants off? A. I ripped her pants off. … Q. When you took the jeans and undies off, the other men were in that toilet room with AB? A. Yeah. … Q. So, the three of you were very close around AB, is that right? A. Yep. Q. She was in the middle of the three of you? A. Yep. … Q. You had your hands on her at this stage? A. Yeah. Q. Did Mr James Bruce have his hands on her at this stage? A. Yep. Q. What about [Bandao]? A. She was sucking him off. Q. How did that start? What happened? A. I ripped her pants off, she turned around, she started smoking him and then I started rooting her, put it that way. … Q. You just tell us what you did and what everyone else did. We're up to the stage that you've ripped her pants off? A. I ripped her pants off. She's sucking Bandao off. Q. How did that happen? A. She was just sucking him off. Q. But how did that happen? A. She turned around like after she was hooking up with James, I'd ripped her pants off, she's just bent over and started sucking him off and then I'm just rooting her. … Q. Had anyone taken their penis out at this stage? A. Yep. Q. Who? A. Me and [Bandao]. … Q. Was anything said when you took your penis out? A. No just went straight into it. Q. Did you ask her if she wanted it? A. No. … Q. You've said that Mr James was touching her? A. Yeah. Q. Where was he touching her? A. Reached around the vagina and her arse and that. …" (AB 1056-1065) "Q. What's the next thing that you recall? A. When the boys come out. Q. Who came out? A. [Bandao] and James. Q. Did they come out immediately following each other? A. Yeah. Q. Where were their penises by this stage? A. Put away. … Q. How long after you came out did the other two men come out? A. Not long, a few minutes. … Q. Where was [the complainant], when the two men that is Bandao and Mr James Bruce left? A. In the toilet." (T 532 – 533) 1. Alcazar gave evidence of the purchase of alcohol and soft drinks in the lead up to the gathering at Bandao's house on 21 June 2015. He said that he had smoked cannabis that evening and was "stoned". 2. In the course of his evidence in chief, the Crown successfully made an application, pursuant to s 38 of the Evidence Act, to cross-examine him. Alcazar agreed that Bruce was in the toilet room and was rubbing the complainant's vagina. In cross-examination by Mr Lawrence, Alcazar insisted that he saw Bandao in and coming from the toilet room. He denied that Bandao said to him "this is not how we do things" or "I have a heart". He denied that it was possible that Bandao had said anything like that. He denied under cross-examination by Mr Trevallion that after the complainant and Bruce had kissed, Bruce left the toilet room. His denials to this effect were expressed in forceful terms. Evidence of Mr Hradavec 1. Mr Hradavec had known Bandao for about six or seven years and they were "good friends". Although he had known Bruce for about a year, he was not a friend and he would only see him every now and again. He had known Alcazar for six or seven years from school, but did not consider him to be a friend. He had known Ms Tejada for a few months and knew that she was Bandao's girlfriend. Mr Hradavec met the complainant for the first time on 21 June 2015. 2. Mr Hradavec's evidence was that Bandao invited him to come to his house on the evening of 21 June 2015. When he arrived, he brought a bottle of tequila. At the time of his arrival he saw Bandao, Bruce, Alcazar, Ms Tejada and a Mr Lim (Mr Lim was the complainant's boyfriend at the time). On his arrival he observed that everyone except Mr Lim appeared to be affected by alcohol. 3. Mr Hradavec saw the complainant and Ms Tejada walk to the outside toilet room. Bandao took Ms Tejada from the toilet and they walked towards him. Ms Tejada sat on the grass and Mr Hradavec remained near her. He did not have a view of the toilet room from that location. Bandao left Ms Tejada on the grass but Mr Hradavec did not see where he went. Mr Hradavec could not say where Bruce or Alcazar were at that time. 4. While Mr Hradavec was with Ms Tejada, Mr Lim came into the back yard and said "where is everyone?". Mr Lim spoke to Mr Hradavec and then left. Mr Hradavec did not tell Mr Lim that the complainant was in the toilet room. 5. Mr Hradavec was cross-examined, pursuant to s 38 of the Evidence Act, by the Crown. During that cross-examination he could not explain why he did not tell Mr Lim that the complainant was in the toilet room. He could not remember whether he said to Mr Lim "sounds like she's having fun" or "are you going to get your girlfriend?". He went into the house for a glass of water for himself and for Ms Tejada, went outside and then went back inside the house with Ms Tejada. 6. Mr Hradavec did not remember "exactly where anyone was", although he remembered "everyone was kind of in the backyard walking around". He remembered that the complainant was in the backyard but could not remember exactly where. He did not remember Bandao being with him and Ms Tejada while she was on the grass or when he brought her a glass of water. Evidence of Mr Lim 1. Denis Lim had been seeing the complainant for about a week up to 21 June 2015. He went to the address where the complainant was that night to pick her up and take her home. He had been in contact with the complainant at about 9pm that night. The complainant and Ms Tejada met Mr Lim outside. He spoke to the complainant who seemed happy and excited and a little drunk. When he offered her a lift home she wanted to stay. 2. Mr Lim only saw the complainant consuming alcohol after Mr Hradavec arrived with his bottle of tequila. He later saw the complainant go to the outside toilet room with Ms Tejada. When he was cross-examined by the Crown, pursuant to s 38 of the Evidence Act, he agreed that he had told police that he had seen the complainant "get drunk" and vomit before she went to the toilet. 3. Mr Lim said that the complainant and Ms Tejada went inside and shut the door to the toilet room. He then heard the noise of vomiting from the toilet room. At that time the males were sitting around the table and he stayed with them. When one of the males said that he wanted to leave and asked Mr Lim to move his car, he did so. He did not remember seeing Bandao follow him to the gate as he left to move his car and he did not see Bandao give Ms Tejada a glass of water. 4. When Mr Lim came back after moving his car, he saw only Ms Tejada and Mr Hradavec. He spoke to Mr Hradavec and asked him where everyone was to which Mr Hradavec responded that he did not know. When it was put to him that Ms Tejada had given evidence that Mr Hradavec had asked him "what about your girlfriend" and that he had replied "looks like she's having fun", Mr Lim said that he did not recall such a conversation. Mr Hradavec in his evidence also said that he did not remember such a conversation. 5. Mr Lim said that he watched a movie that was playing on the television in the living room through a window but did not see Bandao, Alcazar or Bruce inside the house. It was at about this time that his aunt telephoned him to ask him to return the car and he had to leave. 6. When Mr Lim was cross-examined, pursuant to s 38 of the Evidence Act by the Crown, he agreed that he had told the police "I didn't say goodbye to the complainant as she was in a bad state". 7. According to the complainant, Mr Lim had sent her a message while she was still at Bandao's house to the effect of "let me know if you're OK". The complainant later accepted that Mr Lim had sent her a text in which he had indicated that he was angry. The complainant said that this was because she did not go home with him and denied that it was because she was in the toilet room with Alcazar. 8. Mr Lim rejected the proposition that he had become angry because the complainant was in the toilet room with another man. He sent her an "angry text" but not because he had seen her in the toilet room with another man. The texts were not in evidence. The police did not examine the mobile telephones of the complainant or Mr Lim or ask about the content of the text. Evidence of Ms Tejada 1. Ms Tejada had been dating Bandao for a few months before 21 June 2015. She gave evidence of the gathering at his house. She had consumed a lot of alcohol and when she commenced to feel ill, she and the complainant went to the outside toilet room where both of them vomited. 2. Bruce went into the toilet room. Bandao helped her leave the toilet room. When Ms Tejada left, the complainant had her head leaning over the toilet and she continued to vomit. Ms Tejada remembered that the door to the toilet room was closed and that the light was on while she was in there. When she left the toilet room , she sat on the grass. The toilet room door was still closed and Mr Hradavec and Bandao were seated with her. 3. Ms Tejada gave evidence that she heard the complainant moaning because the complainant was having intercourse. On further questioning, it was clear that this was speculation on her part. She did not know where Alcazar was. Mr Lim left the premises just after she came out of the toilet room and sat on the grass. 4. She saw Bruce leave the toilet room and sit on a chair near her. Bruce told her "she sucked my dick". She remembered being given a glass of water but could not remember by whom. She said that she heard Alcazar leave the toilet room with the complainant. She did not see them because she was still "sick on the ground". She heard Bandao say he was going to drive the complainant, Bruce and Alcazar home. She then went to Bandao's room where she "just passed out". 5. That evidence was somewhat different to what Ms Tejada told the police in her statement. She was cross-examined to that effect. In her statement she had Alcazar and Mr Hradavec looking after her while she was seated on the grass and while the complainant was still in the toilet room. She also told police that Bandao left her seated on the grass while the complainant was still in the toilet room and before Bruce left the toilet room. She told police that Bandao "went to the bathroom to get the complainant out". She was not looking and could not say whether Bandao in fact went into the toilet room. Ms Tejada confirmed the truth of what she had told the police in that statement and admitted that her memory was bad and she could not remember whether Bandao had left her seated on the grass and would not be able to say for how long he had left her. Her memory was vague and hazy from the time she commenced being sick until she went to sleep that night. 6. In cross-examination by Mr Lawrence Ms Tejada said that Bandao, after leaving to go to the toilet room while she was seated on the grass, came back and was with Mr Hradavec and Mr Lim and that Mr Lim had left soon after. 7. Ms Tejada was extensively cross-examined by Mr Trevallion. She accepted that she had been "pretty drunk" and was still "a bit drunk" when she gave her police statement the following morning. Her memory of the incident generally and when giving her police statement was affected by alcohol. Her memory had not improved. 8. Ms Tejada confirmed that in her police statement she had said that she believed Bruce to have been in the toilet room because Alcazar and Mr Hradavec were looking after her. She admitted confusing the voices of the males. She was sure that Bruce said "she sucked my dick" but did not remember where Alcazar was at that time. When asked whether Bruce might have said "she sucked his dick", Ms Tejada said that she did not remember but denied that she might have been inaccurate over the exact words which he used. 9. Ms Tejada spoke to the complainant on 2 July 2015 in the recorded conversation about Bruce saying "she sucked my dick". When he said that Bandao was present. The Crown's approach to the recorded conversation 1. As well as setting out the relevant evidence, it is also necessary to set out how the trial proceeded. 2. It was common ground that during the cross-examination of the complainant when adjournments occurred, his Honour gave the usual warning to her not to talk to anybody about the evidence she was giving while she was being cross-examined. His Honour specifically warned her not to talk to the Crown or anyone associated with the Crown. 3. As already indicated, it was only while Mr Trevallion was cross-examining the complainant, and after counsel for Bandao had completed his cross-examination of the complainant, that the fact that the conversation with Ms Tejada of 2 July 2015 had been recorded and a copy of that recording was in the possession of Mr Trevallion, was revealed. 4. On the morning of 29 March 2017 the Crown, in the absence of the jury, made the following submissions to his Honour: 1. That Ms Tejada had recorded her conversation with the complainant of 2 July 2015 in contravention of s 7 of the Surveillance Devices Act 2007 (NSW) (SDA). 2. That Bruce's legal representatives possessed that recording, contrary to s 12 SDA. 3. That the derivative use of that recording as the basis for cross-examination amounted to publication of that conversation, contrary to s 11 SDA. 1. The Crown submitted: "All I want is it produced to Court so that I have an understanding of the entire conversation and as a matter of fairness I can re examine this witness in due course on the entirety of the conversation because at the moment all my friend has done is taken bits and pieces, with some precision and that's what aroused my suspicion of a produce [sic] the Crown says he never should have had in the first place. Now I've put him on notice; I've asked him to produce and so far he said that he will not. …" (T225.37) 1. The Crown submitted that authorities existed which supported "the proposition that a cross-examiner in a criminal trial may not use in the cross-examination material, let's assume for present purposes illegally obtained" (T229). The Crown called for the following items as if on subpoena: 1. Bruce's mobile phone. 2. Any record of any conversation between Ms Tejada and the complainant held by Bruce's solicitors. Nothing was produced. 1. Ms Tejada gave evidence on the voir dire as to the circumstances of the recording of the conversation with the complainant and the means by which Bruce came into possession of that recording. She was granted a certificate under s 128 of the Evidence Act in respect of the making of the recording. 2. On the voir dire Ms Tejada confirmed making the recording without the complainant's knowledge. Ms Tejada said that she had made her statement of 29 March 2017 (which dealt with the meeting with the complainant on 2 July 2015) because she did not believe that Bandao had done anything wrong and she wanted to show the recording to his sister and his parents. She gave evidence that her reason for the recording was to record, if possible, the complainant saying something to confirm Bandao's innocence. Ms Tejada was unaware that she had done anything wrong. 3. Having heard submissions from the Crown but not from defence counsel, his Honour granted the Crown permission to issue a subpoena to Bruce's solicitors for the production of any document or record relating to the conversation. Subsequently, on the morning of 30 March 2017, the Crown advised the court that the retrospective consent of the complainant had been obtained in respect of the recording, that he had obtained a copy of it and that the Crown would make arrangements for a transcript of the recording to be produced. Mr Lawrence, on behalf of Mr Bandao, indicated that until 29 March 2017 Bandao's legal representatives were unaware of the existence of the recording. 4. It was agreed between the parties that following the completion of Mr Trevallion's cross-examination of the complainant, Mr Lawrence would have leave to further cross-examine her following which the Crown could have a conference with the complainant and re-examine her in respect of the recording. 5. Further cross-examination of the complainant by Mr Trevallion did not recommence until 3 April 2017 and concluded the same day. His Honour gave another warning to the complainant not to discuss her evidence with anyone (T414). Mr Lawrence commenced his further cross-examination on 4 April 2017. It focused upon the conversation with Ms Tejada of 2 July 2015. Parts of the recorded conversation were played to the complainant and she was questioned about them. 6. In the course of that cross-examination the following occurred: "Q. You had time since then to reflect on this? A. Yes, I was given a copy of that recording. Q. You were given a copy? A. Well I listened to a copy, yes. Q. Can I ask whether you listened to that recording? A. Yes I did. Q. So you are already aware of what I am putting to you? A. Yep. Q. Might I ask who - don't mention names – but-- CROWN PROSECUTOR: I did and I'll mention a name. HIS HONOUR: Mr Crown, please take a seat. Mr Lawrence is cross examining. … Q. Was it the Crown, that is the Director of Public Prosecutions, that gave you a copy of it? A. Yes, I listened to a copy of it at the office, DPP Office. Q. Did they give you a copy to take home? A. Yes, because I didn't finish listening to the recording. Q. Did you listen at home? A. Yes I did. Q. On how many occasions did you do that? A. Just the once to finish it off." (T 436.7) 1. Cross-examination continued in the same way with parts of the recorded conversation being played to the complainant and her being asked questions about them. 2. His Honour then intervened and the following exchange took place: "HIS HONOUR: I didn't say anything when the complainant, in the middle of her examination in chief was asked to re-read her statements. I didn't say anything when the complainant, while still in chief, having reread her statements, had a particular passage of a particular statement put in front of her. But, what has happened today, is that the Crown Prosecutor has forewarned this witness about a line of cross-examination by placing in her hands and asking her to listen to the recorded tape. No complaint has been made about that by counsel for the relevant accused, but the Court regards it very seriously, Mr Crown, that in taking instructions for her to consent, she has been in effect, warned of the line of cross-examination that was going to come in her direction from that record. CROWN PROSECUTOR: Well, she wasn't warned specifically. She was given the entirety of a conversation-- HIS HONOUR: She should never have been given that tape because it alerted her to precisely the line of cross-examination which Mr Lawrence was obviously going to go on. That should never have happened. CROWN PROSECUTOR: I hear, your Honour. HIS HONOUR: She was ready and waiting for the cross-examiner. CROWN PROSECUTOR: I don't know, she's made a number of concessions that would seem to appear contrary to that. HIS HONOUR: Well, I take a different view about it, Mr Crown. She was forewarned and forearmed. TREVALLION: Can I just add something else, your Honour? Your Honour has told this witness on whatever day she finished her evidence, might have been Tuesday last week not to talk with anyone about her evidence. She was in the middle of cross-examination. CROWN PROSECUTOR: And she didn't. HIS HONOUR: She must have had a conversation with you, Mr Crown, in order for her to be told what the thing was she was going to listen to? CROWN PROSECUTOR: And that's it, not about her evidence. HIS HONOUR: But no leave was sought. I have always assumed having heard that her consent was obtained, I have assumed that that had been raised with your opponents and that they had given their express consent to you discussing that matter with the witness because it was certainly never raised in Court. But, that can be put to one side, the obtaining of consent, but arming this woman, this witness, with the very material that the cross examiner was going to cross-examine on has substantially or has the potential for substantially undermining the effectiveness of the cross-examination on a crucial point. That is, whether or not she was telling the truth to Patricia Tejada when she repeatedly denied that Mr Bandao was involved in any criminality on that night. I have no application before me, but if I am asked to discharge the jury, I will. But, I don't know how that can be remediated from your point of view, Mr Lawrence. The damage is done, the witness will always now know whether there's a re-trial or not of what it was that's on that tape. … HIS HONOUR: But the whole point of your cross-examination was sabotaged? LAWRENCE: Yes. I might - I'll try and finish the cross examination and see where it leads and I might ask your Honour to give me a little bit of time to take some instructions? HIS HONOUR: Yes, I will. LAWRENCE: Informed instructions, your Honour. HIS HONOUR: Yes. LAWRENCE: I don't know how it can be cured? HIS HONOUR: I quite frankly can't see how what has been done can be cured, except – well there's one step that could be taken I suppose that doesn't involve the discharge of the jury. It involves another application. LAWRENCE: Yes. HIS HONOUR: And that might have to be thought about. LAWRENCE: Yes, that's what I was thinking, your Honour. I was thinking about that application and I didn't think I – I might be wrong, but at this stage, I didn't think I could think of that application until the cross-examination of this witness is -- HIS HONOUR: Well, finish the cross-examination and then we'll take the luncheon adjournment." (T443.1 - T444.50) Cross-examination of the complainant then continued. 1. After completing the further cross-examination and after a short adjournment, Mr Lawrence and Mr Trevallion made an application for a permanent stay of proceedings. His submissions were: "LAWRENCE: It has reached a stage where exceptional circumstances have arisen and there is a significant prejudice that cannot be cured. That mainly, or the most significant one at this stage, is the fact that [the complainant] had access to the listening device recording between herself and Ms Tejada on 2 April 2015. This has taken away any effective cross-examination from me in relation to Mr Bandao. This is further complicated by the fact that she has given three separate recorded interviews to the police, and she has refreshed that on a number of occasions before coming to the Court. She has refreshed her memory while she was giving evidence in chief, then from memory during the luncheon adjournment and also on a number of occasions during cross-examination, not only from my part, also when my learned friend, Mr Trevallion, was cross examining her on points that might overlap. Further to that, she had access to the material when she was part way through the cross-examination, so we do not know to what extent she had refreshed her mind, but certainly the worst damage is the -- HIS HONOUR: What material are you referring to in that submission? LAWRENCE: The material, that is the recorded interviews, yes, plus she had a copy of the tape - I think I've got it right - a tape at home, sorry, an electronic device which contained the listening device recording. So in that sense that there is a loss of evidence that the defence counsel would have otherwise access to now that it is in her hands. And in her evidence before this Court, she places Mr Bandao at different stages, but the best we get is he may have been around, and this morning I think the concession was granted that she was not in the toilet. So that goes to some degree we may not even have a proper complaint on foot on the indictment. … LAWRENCE: So at this stage your Honour any adequate directions from your Honour cannot remedy this situation that's occurred in front of this jury, and I also specifically put as a second proposition that it cannot be, that situation cannot be remedied in relation to any future jury that may be called. And the essence of that is my client, Mr Bandao, cannot have a fair trial in relation to these charges. There's been a serious prejudice to such an extent that should any future trial be held, that the prejudice could not be overcome and it cannot be overcome by any directions to the jury in future, in respect of whether the complainant puts one version or several versions as she has done before this Court. On that basis your Honour I apply that your Honour direct a permanent stay on this. HIS HONOUR: Mr Trevallion, do you wish to be heard on this application? TREVALLION: Just very briefly your Honour; I join in the application. It's clear your Honour that this witness was armed with this material before I recommenced my cross-examination. It is clear that the witness would have known that the cross-examination that she was about to face was going to be, at least in part or if not entirely, she made it the view that it was going to be based on that meeting that she had with Ms Tejada. She said to me in answer to questions on the 28th, which I think was Tuesday last week, that - and this is at page 213.8 - that in relation to her meeting with Ms Tejada - 213.8, this is 28 March 2017 - so she said that there were some things, some gaps that she was filling in; there were some things that she didn't agree to which she didn't tell her, that is that she didn't tell Ms Tejada at the time being, given her relationship with Loyd, but there were some things she filled in my gaps. Now she's had the opportunity now to go and think about that and come back and say what bits it was that she was - this is before my friend has had a chance to cross-examine on issues relating to Mr Bandao - so she's had the opportunity to go away and think about what answer she wanted to give to any question that was asked in respect to those gaps, or what were the gaps or what were the bits that she wasn't completely honest with, with Ms Tejada. Further your Honour, any prejudice that - for that reason in my submission there's more prejudice accrues to my friend, there's certainly prejudice accrues to my client as well. HIS HONOUR: Can you just point me to the prejudice to your client; I'm not quite sure that I can see it at the moment? TREVALLION: Well the prejudice is this your Honour that if, without taking your Honour to any specific questions and answers that she gave to me in cross-examination yesterday, the prejudice is this, that if the jury is discharged in the trial against Mr Bandao, assuming a new jury is empanelled - and I'd be submitting that that would have to be the case - my client has lost the forensic advantage obtained by this witness not being aware that she was going to be asked questions; her response to the jury that she had lied to the police, her response that she, the fact that she lied on oath on at least one occasion that I took her to, but there's more than one occasion. The advantage of the jury seeing that firsthand rather than hearing that it occurred in a previous trial in my submission, is quite significant. The witness will be prepared for those questions; will be prepared for questions relating to the issues of dishonesty in this trial and dishonesty for the police and no doubt she will, or may have, answers that will diminish the effect of the jury seeing that firsthand. …" (T452.9-T454.24) 1. Following an adjournment, his Honour made the following proposal: "HIS HONOUR: What would your submission be to the proposition that in lieu of a stay the matters of which you complain could be addressed by a direction under section 165 of the Evidence Act that [the complainant's] evidence as to why she said what she said in the conversation with Patricia Tejada was unreliable by reason of the Crown's conduct. And that they should put no weight on her explanation and that the jury may well feel in those circumstances they should take what she said in the interview at face value. LAWRENCE: Your Honour means the listening device transcript, yes? HIS HONOUR: Yes, what I'm talking about, yes. Because section 165 gives examples in subsection 1 as to what is unreliable and what has occurred in this case isn't captured by any of those paragraphs but they're just examples of what's unreliable. Because as I've understood the law there are three propositions which emerge from the authorities which I haven't really had a chance to look at over lunch in addition to reading the transcript. As I've understood the general law, an order for a permanent stay will only be made in extreme or exceptional circumstances. Secondly, there is a heavy onus on an applicant to establish factual circumstances sufficient to obtain that extreme remedy. And thirdly, there must be such a degree of demonstrable and irredeemable unfair prejudice to a fair trial to an accused that cannot be relieved by the taking of steps in the trial and which outweighs other competing public interests. Now if those broad statements are correct and to be perfectly frank I reviewed the relevant authorities in September of last year and distilled those three principles in a judgment I gave on another stay application. Why wouldn't that course, of directing the jury that her evidence may be, be unreliable? LAWRENCE: It may cure it to some degree, your Honour but the difficulty is, I mean certainly it's a better - from Mr Bandao's perspective to run with this jury rather than a separate jury so I don't want that complication, I know a permanent stay-- …" (T455.19) 1. Ultimately Mr Lawrence took the position that should his application for a permanent stay fail, a direction pursuant to s 165 ought to be given. He made no application to discharge the jury nor did Mr Trevallion. 2. The Crown in his submissions did not resile from the position taken earlier in respect of the recording, i.e. he asserted that Bruce's lawyers were obliged to put the Crown on notice of the existence of the recording and argue its admissibility pursuant to s 138 of the Evidence Act 1995 (NSW) as a precondition of its use in cross-examination. In respect of giving the recording to the complainant, the Crown submitted: "I took the position that as [the complainant] was a party to this conversation and had been cross examined about its existence for over an hour, that she was entitled to hear the conversation herself. Now, that is the gravamen of whether I've made an error not. But that is the position I took. … HIS HONOUR: The problem might have been avoided, Mr Crown, if you had informed counsel for the accused that that is what you were proposing to do. CROWN PROSECUTOR: Well, I can say "Yes" to that because in hindsight, we would have had an argument there and then. So, in hindsight, I say "I agree," there could have been a ruling and we wouldn't be here doing this. Because if your Honour said "Don't give it to her", I would not have given it to her, full stop. … In circumstances where a complainant had been improperly cross examined on product that was illegal and quite clearly on testing the defence, Mr Bruce's representatives, had no right to have that product in the first place. And in those circumstances, I formed the view as a matter of fairness to the complainant that she should be permitted to hear her own words once they were revealed in Court. And that is the position that I stand by. I agree, I should have taken the next step and made plain that position and I would have been bound by any ruling that your Honour made. …" (T459.7-T460.15) 1. His Honour declined to grant a permanent stay holding that while Bandao had sustained a "significant forensic disadvantage … in circumstances which should not have occurred" which brought it "close to the edge of circumstances for a permanent stay, on balance the unfair prejudice can be addressed by a brief direction to the jury that the evidence may be unreliable in accordance with section 165 of the Evidence Act today and a more detailed direction to the jury in the summing up" (Permanent Stay judgment at pp 5-6). 2. Before the trial resumed his Honour gave a direction to the jury in relation to the evidence of the complainant elicited by Mr Lawrence in his further cross-examination: "HIS HONOUR: … During the course of her cross-examination by Mr Lawrence, you will have heard that [the complainant], Thursday I think it was of last week, was given a copy of the recorded conversation between herself and Ms Tejada on 3 July 2015. The short point at the moment is, members of the jury, that should never have happened. That is say, [the complainant] should not have been given that conversation or that recorded conversation. It shouldn't have been given because she was, in a sense, forewarned about a line of questions that she might be asked. And she was therefore given an opportunity which she shouldn't have had to think about what her answers might be to questions arising out of that conversation. For the present purposes this afternoon, members of the jury, all I want to say to you is this. I'm going to say some more to you about her evidence and in particular, what you heard in her cross-examination yesterday and more particularly today is that her answers about why she said what she said in that recorded interview may be unreliable because of the fact that she was forewarned about the contents of that conversation. And more particularly today, is that her answers about why she said what she said in that recorded interview may be unreliable because of the fact that she was forewarned about the contents of that conversation. Ultimately, it will be a matter for you when you come to your ultimate assessment of all of the witnesses in the case what you make of that, but I will return to that topic in some more detail when I sum-up to you at the end of the case. Just for the present purposes I repeat, that because of the manner in which between last Thursday and today she had access to material she should never have had you may, I'm not saying you should, you may regard her answers as to why she said what she said to Ms Tejada in July 2015 as being unreliable. …" (T469.5) 1. At the conclusion of the evidence in his closing address, the Crown sought to explain the inconsistencies and difficulties in the complainant's evidence. Mr Lawrence in his closing address emphasised what he described as the complainant's dishonesty and attempts to hide the truth from the jury. In the course of that address, he said: "Remember, she came into this court, took an oath, sat there and she's speaking to 12 judges sitting there, his Honour sitting at the back, court officers - sorry, at the front of the court but as you face - the court officers, the two accused men, sheriff's officers, barristers, solicitors. I count that to be about 25 persons. She's looking at 25 persons, giving evidence, and telling lies. You might also recall your Honour giving a short warning and I would anticipate that he'll give you a more full warning during his summing up and I ask you, ladies and gentlemen, to actually invite it and embrace what his Honour says. What do I mean by those words? Ask you to put yourself and consider the witness' perspectives. Analyse it, think it through. Why would the witness say that and whatever answer you come up with, embrace that answer? It's part of the analysis process. The reality is, she should not have had that tape at that stage because, as you can see, she hedged the answers. She knew where I was going and she was forewarned. It's a bit like taking a maths exam. You're given the answer sheet, you work out the answers, you go to the exam, you get the same questions again and you're able to better perform because you've worked through the problems. You might not know the answer, how you got to the answer but you can work out what the required answer is, memorise it and write it so you're true knowledge may not be tested. Yes, you've got a memory to provide a certain answer. You can't go beyond exhibit 1, which was the black USB stick that you will have in the jury room and the transcripts of those recordings. I really urge you to listen to that. Look at the way - how passionately she says that. How convincing it is. You need to take all that into context. Five times she says in that hour and 20 minute recording that Loyd did not do it. Once by inference, clear inference by that and four times in no uncertain terms. You wouldn't go beyond that bit of phone recording evidence in relation to [the complainant]." (T 1304.23) 1. In his summing up his Honour gave an unreliability warning in respect of Alcazar's evidence. It was in that context that his Honour went on to say: "In considering whether you accept it [Mr Alcazar's evidence] and what weight you give to it, you may think it useful to consider whether there is any evidence, other evidence, available to support what he says. Does [the complainant] provide evidence that supports what Mr Alcazar has said?" (SU 28.4.17, 12.1) 1. His Honour then summarised the complainant's evidence as to oral intercourse (being the subject of count 1), her statement to Nurse Newland that there had been no such intercourse and her failure to complain about oral intercourse when she first spoke to police. His Honour continued his summing up as follows: "Another aspect of her evidence you might want to think about, members of the jury, concerns that meeting on 2 July in Parramatta with Patricia Tejada, a conversation that [the complainant] did not know was being recorded. She repeatedly told Patricia Tejada in the recorded conversation that she knew Loyd Bandao was not involved. Was that assertion repeatedly made by her because [the complainant] simply seeking Patricia Tejada's assistance to fill in the gaps in [the complainant's] memory, as the Crown suggests? Or was she, in fact, stating in an unguarded moment what she believed to be the truth, as counsel for the defence have suggested? Well, you might like to think about some other things surrounding that conversation. One matter that you might want to think about is that [the complainant] took some care to ensure that it did not become known to the police. She arranged, and ensured, that the meeting did not take place at Blacktown where she knew investigating officers might see her and Ms Tejada. She arranged for it to happen here in Parramatta. She knew that she was not supposed to be talking to other witnesses - yet she did so. And she lied to the police about whether she had spoken to any other witness. The existence of the recording was not known to the Crown or Mr Lawrence when Mr Lawrence first cross examined [the complainant], and that is why he was permitted to cross-examine her a second time - because the existence of the tape had become known. You might think, members of the jury, that, taken at face value, the passages played to you - not only what was said but the highly emotional delivery in which they were said - you might think that they are highly favourable to Mr Bandao. But by the time that [the complainant] was cross examined a second time, she knew that that conversation had been taped and she had listened to it - and more than once. Before she was asked further questions by Mr Lawrence, she would have been aware of those highly favourable passages to Mr Bandao which were inconsistent with the evidence that she had already given you in the trial. I said to you, around about the time shortly before that second cross-examination commenced that [the complainant] should never have been given that recording, and I will say it again. That should never have happened. Each of us in our daily lives - you, the lawyers at the bar table, me - we all make mistakes. We think we are doing the right thing, but in the cold light of day some things we think we were doing properly were wrong, and that's what the Crown Prosecutor did. I'm not saying that he deliberately engaged in misconduct. Far from it. He is a highly respected member of the bar. But he made a mistake. And because of that, [the complainant] was forewarned about the contents of the tape and, therefore, she was able to anticipate (you might think) questions that she might be asked about things she said in the conversation that were inconsistent with what she had said to you. When she was cross examined the second time by Mr Lawrence, she gave an explanation to you as to why she kept on saying to Patricia "I know Loyd wasn't involved". That explanation was that she didn't want to hurt Patricia Tejada. Patricia Tejada, members of the jury, you'll remember, [the complainant] hardly knew. She had only known her for a week before, according to [the complainant] in the witness box, Patricia Tejada's own boyfriend sexually assaulted her. But according to [the complainant] in her evidence to you, she said what she said to Ms Tejada in that park because she didn't want to hurt her - this person that she told Constable Bazetti "I don't know her that well. I only knew her for a week." In relation to those answers, members of the jury, those answers to Mr Lawrence about the tape and the reason she gave to you as to why she said what she said, I warn you that it may be unreliable. It may be unreliable because the witness was improperly forewarned or alerted to the contents of the tape and therefore given an opportunity to consider aspects of it which were inconsistent with the Crown case or the evidence she had already given to you. We do not know what her evidence would have been if she hadn't been alerted to the contents of the recording. She may have said that, at all times, she was trying to be honest when speaking to Ms Tejada in the park, or that she actually was being honest before the tape was played to her in court. Or she may have given the same evidence that she did in the trial anyway. We just do not know. But because of that, you should be cautious about whether you accept that aspect of her evidence or what weight you give to it. Another matter you might like to consider, members of the jury, and this has been dwelt on by others, is that we know that when [the complainant] spoke to Nurse Newland (quite apart from the topic I have already spoken to you about) she asserted that it was four men who had assaulted her; four men digitally penetrating her; four men penetrating her with their penises. That is not the case the Crown has advanced to you. Finally, on the things that I particularly wanted to mention to you - whether you think they are important or not is for you to consider - is you will recall that originally she said that Valentino Hrdavec had been directly involved - and we know that as a result of that allegation that young man spent time in gaol, lost his job in the head office of a bank and is now a storeman, and lost his friends. The allegation was not true." (SU 28 April 2017, 12.9-16.2) THE APPEAL Ground 1 – The Crown prosecutor's conduct in respect of the secret recording of the complainant so fundamentally affected the nature of the trial such as to cause a substantial miscarriage of justice. 1. Counsel for Bandao referred to ss 27, 41, 43 and 45 of the Evidence Act as justifying the cross-examination of the complainant on the conversation between her and Ms Tejada recorded on 2 July 2015. He particularly relied upon s 43 which provides: "43(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness. …" 1. Counsel for Bandao submitted that the importance of cross-examination to a fair trial has been long recognised. He relied on the observation of the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) in Lee v R [1998] HCA 60; 195 CLR 594 at [32] where the Court said: "32 The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the "best evidence rule" and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial." 1. Counsel for Bandao referred to r 73 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Bar Rules) which prohibits conferring with a witness by his or her counsel while the witness is under cross-examination. He submitted that where there has been a departure from law in the running of a trial, observations such as those made by Kirby and Callinan JJ in Libke v R [2007] HCA 30; 230 CLR 559 at [48] were relevant: "48 Justice is to be administered according to law. Justice, in strict terms, miscarries whenever there is a departure from proper process. Not every such departure will necessarily produce a substantial miscarriage of justice When however there is a departure from what the law requires, an appellate court, although it does not act upon a presumption that the departure has necessarily produced a substantial miscarriage of justice, proceeds upon the basis that, the accused having been denied a trial according to law, he or she may well have been the subject of such a miscarriage." 1. Counsel for Bandao submitted that the "train of decisions leading to a miscarriage of justice" began with the assertion by the Crown that cross-examination of a witness on the basis of illegally obtained material was contrary to authority. He submitted that no authority to support that proposition was put before the Court and that it was unlikely that any such authority existed. He submitted that any challenge to the propriety of cross-examination must overcome the broad power to cross-examine witnesses granted by ss 27 and 29 of the Evidence Act and in particular s 43. He submitted that the power to cross-examine on illegally or improperly obtained material was consistent with s 138 of the Evidence Act which contemplates that such material may be admissible despite its origins. He submitted that in circumstances where the defence has a right to silence, it is difficult to envisage how the failure to disclose illegally obtained material before cross-examination could produce an unfairness to the Crown especially given the ability to call for the document pursuant to s 45 of the Evidence Act. 2. Counsel for Bandao submitted that providing a copy of the recorded material to the complainant undermined any possibility of the effective cross-examination of her. He submitted that in addressing the jury so as to reinforce the evidence of the complainant which was directly affected by the wrongful disclosure of the recorded material, the Crown amplified the effect of the wrongful disclosure of that material. Counsel for Bandao submitted that it was for those reasons that the Crown's conduct constituted a radical departure from the requirements of a fair trial which in the overall circumstances gave rise to a substantial miscarriage of justice. 3. Counsel for Bruce did not rely upon this ground of appeal. Consideration 1. The criticism of the Crown's conduct of the trial in respect of the recorded conversation and its effect on cross-examination of the complainant was significantly overstated at trial and has been overstated in the submissions in support of this ground of appeal. 2. Subsection 7(1) SDA states: "7(1) A person must not knowingly install, use or cause to be used or maintain a listening device: (a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party." 1. Subsection 7(3) relevantly provides an exception to subsection 7(1)(b): "7(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if: (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation: (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation." 1. It is clear from Ms Tejada's evidence that she was not protecting her own lawful interests. She was seeking to protect the interests of Bandao. That conclusion is in accordance with the observations of this Court in Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108 at [141]-[142] where Johnson J (with whom McClellan CJ at CL and Hislop J agreed) set out the limits of what is a "lawful interest" as that term was used in s 5(1) of the Listening Devices Act 1984 (NSW). While his Honour accepted that the term "lawful interest" is capable of a broad construction, having regard to its statutory context, his Honour concluded: "142 Section 5(3)(b)(i) LD Act should not be interpreted in such a way as to render otiose the primary purpose of the Act, which is to protect privacy by prohibiting covert recording of a conversation other than (usually) by way of a warrant under the Act. …" 1. Section 11(1) SDA prohibits the communication or publication of private conversations: "11(1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part." 1. Had counsel for Bruce been informed by Ms Tejada about what she remembered of the conversation she had with the complainant on 2 July 2015, there would be no contravention (s 11(3) SDA). Clearly, however, counsel for Bruce was using a transcript, or some kind of record of that conversation in his cross-examination (T214.28, T214.49, T215.27, T216.18). 2. Section 11(2)(ii) provides an exception to s 11(1) if the communication or publication is made: "(ii) with the consent, express or implied, of all the principal parties to the private conversation or activity, …" 1. Unlike s 13 of the now repealed Listening Devices Act (LD Act), the SDA contains no provision that deals with the admissibility of a conversation that was unlawfully recorded. It is s 138 of the Evidence Act that deals with the admissibility of unlawfully recorded conversations and evidence that is obtained as a consequence. 2. Section 138 prohibits evidence obtained "in consequence of an impropriety or of a contravention of Australian law" (s 138(1)(b)). There must be a causal connection between the impropriety and the obtaining of the impugned evidence, even if only indirect: R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 at [86]; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 (Howie J) at [25]-[27]; R v Xie (No 4) [2014] NSWSC 500 (Johnson J) at [170]. Answers obtained through the use in cross-examination of an unlawful recording of a private conversation would clearly be within the prohibition created by s 138(1)(b). It is to this issue that the Crown referred when he spoke of authorities regulating the cross-examination of a witness based on material that had been unlawfully obtained. 3. Section 43 of the Evidence Act, to which counsel for Bandao referred, merely allows cross-examination on a prior inconsistent statement. It is the answer that the cross-examiner wants. That answer is prima facie inadmissible because of s 138 of the Evidence Act if the cross-examiner was relying on unlawfully obtained information. It follows that the submission by the Crown at trial was an appropriate one. 4. It should be noted that the complainant's consent could not operate retrospectively to effect the lawfulness of the recording. If all of the principal parties to a conversation consent expressly or impliedly to a party to that conversation using a listening device to record the conversation, there is no breach of s 7 of the SDA. The consent of the parties or a principal party, however, must occur at the time of the recording, not subsequent to it. The consent must be to the listening device being so used. 5. Although his Honour treated the complainant's consent as the only matter that was necessary and allowed that consent to be retrospective (which was an error), it did not become a problem because the parties effectively agreed that, retrospectively, the recorded conversation could be used in the trial. The use of the recording thereafter occurred without objection by any of the parties. This was despite the fact that s 138 of the Evidence Act states that evidence obtained (or obtained as a consequence) through impropriety or a contravention of an Australian law "is not to be admitted" unless the balancing exercise set out in s 138(1) is undertaken. Accordingly, the approach taken at trial was appropriate if one interprets the words "is not to be admitted" as used in s 138 to mean "admitted over objection". That is the approach which was followed in Dhanhoa v R [2003] HCA 40; 217 CLR 1 at [20]; Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at [26]; WC v R [2015] NSWCCA 52 at [20]. 6. On the basis of the above analysis, the following should have occurred at trial. In the absence of the jury Mr Trevallion should have sought a ruling under s 138 of the Evidence Act to rely upon the recorded conversation in his cross-examination. Whether his Honour would have granted that application is not known. From the comments made by his Honour at trial, and because of the probative value of the content of the recording to the applicants' case, particularly that of Bandao, the likely result had his Honour balanced the appropriateness and inappropriateness of admitting the evidence, is that the recording would have been admitted into evidence. 7. Had his Honour ruled in favour of admitting the evidence, it would have been open to the Crown to make an application to the court for access to the recording and if that were unsuccessful, take other steps such as issuing a subpoena with abridged time for service, for its production. All of that should have occurred before the commencement of any cross-examination of the complainant on the recorded conversation. 8. In the circumstances which actually occurred, i.e. discovery of the existence of the recording during the course of Mr Trevallion's cross-examination of the complainant, the Crown when he gained access to the recording should have advised defence counsel of his intention to make the recording available to the complainant. In the absence of their consent to do so, he should have made an application to that effect to the court. It was wrong for him not to do so and he was correctly criticised for that failure. 9. That having been said, the fact that the complainant was cross-examined for a time in relation to the recording, which was illegally obtained, and that it was intended that counsel for Bandao would further cross-examine her gave rise to a level of unfairness towards her. It is for that reason that s 138 has been included in the Evidence Act, i.e. to enable a court to control the use of evidence unlawfully obtained in proceedings before it. 10. Moreover, it is by no means certain that the complainant's response to the cross-examination by counsel for Bandao would have been significantly different had she not had access to the recording. The evidence reveals that she did have some independent memory of the substance of the conversation. It was fairly obvious from her responses before she was made aware of the existence of the recording that there was an issue as to her honesty because parts of that conversation were played to her. On that issue, the following question and answer which predated her awareness of the recording is significant: "Q. Where for example you were saying, "I don't really remember this bit" and I'm not suggesting that you said look I don't remember anything but you'd be saying for example, "Look I don't remember this little bit here" and she would be then telling you or offering you information, so what she said was actually happened. Do you agree with that? A. There were some things that she said that did fill in my gaps. Some things were, I didn't agree to which I didn't tell her at that time being her, given her relationship with Loyd but there were some things she filled in my gaps." (T.213.2) 1. Accordingly, it cannot be taken as an established fact that had the complainant not listened to the recording of the conversation during her cross-examination, her answers in re-examination would have been significantly different to those which she gave in cross-examination. It also needs to be kept in mind that had she not been aware of the recording, the concessions and admissions obtained during cross-examination would have been tempered to some extent by her evidence in re-examination as to her purpose or intention in deliberately providing Ms Tejada with false information concerning Bandao. 2. As already indicated, even with knowledge of the content of the recording many of the complainant's responses were quite favourable to Bandao, in particular, her equivocal statements about whether he was in the toilet room at the relevant time. The following evidence towards the conclusion of the complainant's cross-examination by counsel for Bandao illustrates that: "Q. This is what you said isn't it, "That I know for a fact it wasn't Loyd"? A. Yeah, I said that to Trish, yeah. Q. I mean for a fact, that's definitive isn't it? A. Yeah, in that sense yeah, in that context. Q. That's what you told her? A. Yeah, that's what I told her. Q. I'll play this next extract, page 31. [MFI 11 PLAYED TO COURT] Q. Again you knew Loyd was not there? A. (No verbal reply) Q. That's what you told Ms Tejada, isn't it? A. That's what I told Trish. Q. The reference "not there" you were actually referring to the toilet aren't you? A. I guess, yeah. Q. So Loyd was not in the toilet? A. Did I really ever mention definitively that he was? Q. Isn't that what it says here, "Loyd was not in the toilet," isn't that your understanding? A. Yeah, but I never mentioned in a certain, in, with an amount of certainty that he was inside the toilet." (T 446.23) 1. Given those concessions, it is not correct, as counsel for Bandao has submitted, that access by the complainant to the recording "undermined any possibility of an effective cross-examination" of her. On the contrary, not only were significant concessions obtained from that cross-examination but the apparent contradictions in her evidence were forcefully placed before the jury by counsel for Bandao in his closing address, and were also forcefully placed before the jury by his Honour in his summing up. His Honour, both at the completion of the complainant's cross-examination and during his summing up, gave the jury a warning as to the reliability of the answers by the complainant to questions relating to what she told Ms Tejada. No application was made by counsel for the applicants for his Honour to add in any way to those warnings. 2. There is no doubt that the cross-examination of the complainant in this case was important. There is no issue that cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of that person's story. Moreover, there is clear authority that the conduct of a Crown Prosecutor in a criminal trial can of itself lead to a miscarriage of justice that can found a successful appeal against conviction (Beazley P, Schmidt and Button JJ in Hughes v R [2015] NSWCCA 330; 93 NSWLR 474 at [272]). As Deane J noted in Whitehorn v R [1983] HCA 42; 152 CLR 657 at pp 663-664 whether there was a miscarriage of justice depends on whether, in the circumstances of the case, the applicant was denied a fair trial. 3. What needs to be considered is the degree of the departure from proper process and the resulting unfairness. This was the approach of the majority (Gleeson CJ, Hayne and Heydon JJ) in Libke v R. There Gleeson CJ said at [2]: "2 First, the argument that the conduct of the prosecutor during his cross-examination of the appellant resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. ..." 1. At [81] Hayne J said: "81 The comments the trial prosecutor made, in the course of cross-examining the appellant, departed from the rules that ensure the orderly conduct of a trial. But that observation does not answer the critical question presented by the appeal provision of the Criminal Code, which is said to be engaged. That question is whether there was a "miscarriage of justice". More particularly, did the making of these comments, either standing alone, or in conjunction with other aspects of the prosecutor's cross-examination of the appellant, make the trial unfair?" 1. At [134] Heydon J said: "134 While the breaches of exclusionary rules discussed above were capable of placing the accused in an unfair position, taken as a whole the breaches generated neither unfairness nor a miscarriage of justice." 1. This Court in Hughes v R when considering whether the trial miscarriedbecause of the manner in which the Crown Prosecutor addressed the jurytook into account, not only the inappropriate comments made by the Crown,but the directions given by the judge as a consequence of those comments.Accordingly, the particular circumstances of this case require consideration. 2. The trial judge accepted that the Crown had not given the recording to the complainant to deliberately thwart her cross-examination. Through listening to the recording, the complainant knew that her lack of honesty to Ms Tejada was clear and was able to counter the cross-examiner's questions through her knowledge of what she had said. To that extent she was forewarned. Nevertheless, an examination of those responses makes it clear that some were favourable to Bandao in that they raised significant credit issues concerning the complainant: "Q. There were things you did not tell her? A. Yep. Q. The things that you did tell her, were they entirely true? A. I probably wouldn't say, "Yes." Q. What part would you say probably not, "Yes"? A. About her boyfriend at that time, I was trying to fabricate that. Q. You were trying to fabricate that? A. From her. Q. Sorry? A. I was trying to lie to her about that, yes. Q. Why were you trying to lie to her about it? A. I didn't want to hurt her. Q. What part did you lie to her about? A. Me telling her that I didn't see her boyfriend being there. Q. I want you to explain what you mean by "I did not see her boyfriend being there"? A. Well, like I said in my statement, I did look back and saw Loyd, but I didn't tell her that I did." (T424.17) 1. It is also important to understand that, unusually for a case of this kind, it was not the complainant who was the primary witness for the Crown. The complainant freely admitted that her recollection was fragmentary as to the events of the night. The Crown's prime witness was Alcazar whose evidence was that the applicants had committed offences along with him. In his summing up, the trial judge directed the jury that the Crown case as to counts 1, 2 and 3 depended on their acceptance of Alcazar's evidence. In those circumstances, the complainant's evidence was to be considered, not as standing alone, but for its capacity to support that of Alcazar. In his summing up, the trial judge said: "In considering whether you accept it and what weight you give to it, you may think it useful to consider whether there is any evidence, other evidence, available to support what he [Alcazar] says. Does [the complainant] provide evidence that supports what Mr Alcazar has said?" (SU 28.4.2017, 12.3) 1. In any event, the complainant's evidence did not strongly assert Bandao's involvement. Cross-examination on his behalf before she had knowledge of the recording and then after, revealed the limitations in her evidence. When one looks at the whole of the complainant's evidence, although she was forewarned as to the contents of the recording, the overall effect on her cross-examination was not nearly as great as has been submitted. The complainant would also have had the opportunity to explain her reasons for denying Bandao's involvement in re-examination. The jury also had before them what was actually said by the complainant in the recorded conversation. Not only did they have before them the strong warnings pursuant to s 165 of the Evidence Act by his Honour but they also had his Honour's comments in the summing up concerning inconsistencies in the complainant's evidence. Those comments were critical of that evidence and would have greatly reduced its perceived probative value. 2. The Crown in his closing address accepted responsibility for making the recording available to the complainant. In the summing up, his Honour specifically referred to the Crown's error in that regard. Nevertheless, it was well open to the Crown to urge upon the jurors that they pay particular attention to the evidence of the complainant in cross-examination by both defence counsel before she listened to the recording. Not only was that a permissible submission by the Crown, it was not the subject of any complaint by counsel for the applicants. 3. I have concluded that although counsel for Bandao suffered a forensic disadvantage because the complainant had listened to the recording of the conversation before he conducted his further cross-examination, the effect of that disadvantage has been greatly overstated given the subordinate role of the complainant's evidence in this trial. That is particularly so when one has regard to the strong warnings and qualifications concerning the complainant's evidence given to the jury by the trial judge. Most particularly, the forensic disadvantage was not such as would amount to a miscarriage of justice or such as would involve significant unfairness to Bandao. 4. This ground of appeal has not been made out. Ground 2 – That a substantial miscarriage of justice occurred by reason of the failure of counsel for the applicant to apply to discharge the jury. 1. This ground of appeal was only raised by Bandao and was not relied upon by Bruce. 2. Counsel for Bandao relied upon the following statement of principle in R v Birks [1990] 19 NSWLR 677 at 685 where Gleeson CJ (with whom McInerney and Lusher JJ agreed) said: "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 1. Counsel for Bandao submitted that the inquiry must be as to whether the decisions by counsel, when viewed objectively, were rational decisions (Gleeson CJ in Nudd v R [2006] HCA 9; 80 ALJR 614 at [9]) or whether they were choices that a competent counsel could fairly make (TKWJ v R [2002] HCA 46; 212 CLR 124 at [95] (McHugh J)). 2. Counsel for Bandao submitted that when the application for a permanent stay had been refused by the trial judge, trial counsel should have recognised that the trial could not continue before the same jury. This was because the probative value of the exculpatory material in the recording was effectively destroyed by the Crown's premature disclosure to the complainant. Counsel for Bandao submitted that the fact that such disclosure had not become apparent until halfway through trial counsel's further cross-examination, produced both evidentiary and procedural disadvantages. 3. Counsel for Bandao submitted that trial counsel's decision to continue cross-examination following the disclosure that the complainant had heard the conversation, pointed to a lack of appreciation by him of the substantial and irredeemable nature of the prejudice which had been occasioned to Bandao. Counsel for Bandao noted that this decision was made following a firm indication by the trial judge that if an application were made to discharge the jury it would be granted. Counsel for Bandao characterised the decision not to apply for a discharge of the jury as objectively irrational and not a decision which competent counsel could fairly make. Consideration 1. In Matthews v R [2013] NSWCCA 187 at [62] this Court (Hoeben CJ at CL; Leeming JA and Beech-Jones J) set out the relevant principles applicable to a ground of appeal such as this: "62 In assessing complaints about counsel's conduct it must be borne in mind that the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). None of the alleged failings of the appellant's counsel is even close to the potential category of errors by counsel adverted to by McHugh J in TKWJ at [76], namely those that are of such a nature that of themselves they might render a trial unfair (see Nudd v R [2006] HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). Instead the nature of his complaints are such that what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J)." 1. In accordance with that guidance, the decision not to make an application for a discharge could not on its own result in an unfair trial. Instead "what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial". 2. Moreover, even if the decision not to apply for a discharge appears to have not been carefully considered, was unwise or produced consequences which operated to the disadvantage of the applicant, the trial will not be unfair nor will there be a miscarriage of justice (TKWJ v R per Gleeson CJ at [16]-[17], McHugh J at [95]). An appellate court needs to ask could there be any reasonable explanation for the decision by trial counsel that is called into question by the ground of appeal (per Hayne J (Gummow J agreeing) at [107]). 3. Statements to similar effect were made by this Court in Kees Langelaar v R [2016] NSWCCA 143 at [71] per N Adams J (Hoeben CJ at CL, Campbell J agreeing). There, her Honour said that "the ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open". At [67] N Adams J noted what Gaudron J had said at [32] in TKWJ: "An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial." 1. In a retrial the complainant's knowledge of the recorded conversation and her likely disavowal of what she said in that conversation as to Bandao's presence, could not be altered. That would be a problem which would operate as much in a retrial as in this trial. There was always a risk, however, that in a retrial the complainant might better explain the apparent contradiction between what she said in the recorded conversation and her evidence that Bandao in fact was in the toilet room at the time when she was being assaulted. In this trial, in the context of the burden and standard of proof, the contradictions in the complainant's evidence remained as favourable evidence for Bandao. 2. As is clear from the exchanges between trial counsel for Bandao and his Honour, Bandao would be no better off in a retrial than he was in this trial. The complainant could be further cross-examined in any retrial but her knowledge of the contents of the recorded conversation could not be avoided. There would, however, be significant disadvantages for Bandao in a retrial. There would be a different Crown Prosecutor in a retrial who would be able to distance himself or herself from any claims of misconduct. In addition, the trial judge had made his opinions known. He had foreshadowed warnings under s 165 of the Evidence Act and it was apparent that he had formed an adverse opinion of parts of the complainant's evidence. 3. In those circumstances the decision of trial counsel for Bandao not to seek a discharge of the jury was a rational decision based on the particular circumstances of this trial. It could not be said that Bandao lost a chance of acquittal which was fairly open by his counsel's failure to apply for a discharge of the jury. 4. This ground of appeal has not been made out. Ground 3 – That the trial judge erred in failing to grant a permanent stay of proceedings, or in the alternative, by failing to discharge the jury. [In counsel for Bandao's written submissions this ground is expressed as follows: Ground 3 – That the trial erred by holding that any unfairness to the appellant could be remedied by a direction pursuant to s 165 Evidence Act)] In the appeal by Bruce the ground is expressed as: Ground 1 – The trial judge erred in failing to grant a permanent stay of proceedings. 1. The trial judge delivered judgment on the application for a permanent stay on Tuesday, 4 April 2017. In the course of that judgment he made it clear that had the Crown sought the leave of the court to provide the recorded conversation to the complainant, that application would have been refused (Judgment 5.2). His Honour found: "The witness was improperly forewarned about the contents of the tape and, implicitly, the line of cross-examination. The witness therefore had the opportunity of considering, over several days, an explanation for the exculpatory statements she made to Ms Tejada which she would not have had if she had been cross examined, as it were, "cold"." 1. His Honour concluded that a very significant forensic advantage had been lost by Bandao. His Honour was not satisfied that such a disadvantage had been suffered by Bruce. 2. His Honour stated the principles relevant to the application for a permanent stay as follows: "First, an order for a permanent stay will only be made in extreme or exceptional circumstances. Secondly, there is a heavy onus on an applicant to establish factual circumstances sufficient to obtain that extreme remedy. Thirdly, there must be such a degree of demonstrable and irredeemable unfair prejudice to a fair trial to an accused that cannot be relieved by the taking of steps in the trial and which outweighs other competing public interests." (Judgment 6.5) 1. His Honour expressed his conclusion in relation to the application as follows: "This is a case very close to the edge of the circumstances for a permanent stay in relation to the prosecution of Mr Bandao on the present charges. I am satisfied that there has been a very significant forensic disadvantage sustained by the accused, Mr Bandao, in circumstances which should not have occurred. I am of the view, however, that, on balance, the undoubted unfair prejudice can be addressed by a brief and immediate direction to the jury that the evidence (i.e. [the complainant's explanation for her repeated exculpatory statements to Ms Tejada concerning Mr Bandao's role in the events of 21 June 2015) may be unreliable in accordance with s 165 of the Evidence Act and a more detailed direction to the jury in the summing-up. That is the course I propose to take." (Judgment 6.8) 1. Counsel for Bandao noted that his Honour had found a serious breach of ethics which undermined the ability of trial counsel for Bandao to cross-examine on an important issue in the trial. He submitted that it was not open to his Honour to propose the use of s 165 of the Evidence Act in the way in which he did, because any obligation to give a direction pursuant to that section was conditional on a request from either party (R v Stewart [2001] NSWCCA 260 at [41]). He submitted that the existence of that condition highlighted that the section was not intended to be used as it was in this trial. 2. Counsel for Bandao submitted that the way in which the complainant had become aware of the contents of the recorded conversation enabled her to ambush trial counsel for Bandao in front of the jury. He submitted that it was impossible to assess the impact which that course of events might have had on the jury's impression, both of the complainant and the effectiveness of the cross-examination of her by trial counsel for Bandao. He submitted that any direction under s 165 even on the application of counsel, could not address that procedural unfairness. 3. Counsel for Bandao submitted that the inadequacy of the s 165 direction, which was actually given, was evident from the way in which the Crown was able to use the complainant's evidence on this very point in his closing address. He submitted that it was for those reasons that his Honour was in error in failing to grant a permanent stay. 4. In the alternative, counsel for Bandao submitted that even if it were not appropriate for his Honour to grant a permanent stay, his Honour should, of his own motion, have discharged the jury and not waited for an application to be made by one of the parties. Counsel for Bandao submitted that his Honour's overriding obligation was to ensure a fair trial and the only way that could happen in the circumstances of this case, was for the jury to be discharged. 5. Counsel for Bruce submitted that a permanent stay was the only effective remedy for what had occurred because her client had lost a forensic advantage which could not be regained by a discharge of the jury and the empanelling of a new jury. The damage which had occurred was irremediable. She submitted that in the particular circumstances of this case, Bruce had been denied a trial according to law and the resulting conviction had therefore involved a miscarriage of justice. This was because any subsequent trial would be affected by the consequences of the Crown's conduct in making the complainant aware of the contents of the recorded conversation during cross-examination. 6. Counsel for Bruce submitted that while the power to grant a permanent stay is discretionary and will only be used in exceptional circumstances in criminal proceedings, the touchstone of every case is fairness. In this case, the events which had occurred went to the root of the trial and were "of such a nature that nothing that a trial judge could do in the conduct of the trial could relieve against its unfair consequences" (Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 at [34]). 7. Counsel for Bruce submitted that even though the trial judge had minimised the conduct of the Crown as a "mistake" the effect of this "mistake" was to ambush counsel for Bandao in his cross-examination and gave the jury the impression that the behaviour of the Crown was explainable in the circumstances. Counsel for Bruce noted that it was impossible to assess the impact which the course of events in this trial must have had on the jury so that any s 165 direction could not address the unfairness which had resulted. Consideration 1. The grant of a permanent stay of proceedings is an exceptional remedy. In Jago v District Court of NSW Mason CJ said at [34]: "34 To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'". 1. The test was set out in R v Edwards [2009] HCA 20; 83 ALJR 717 by the Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [23]: "23 … 'whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness', or whether the 'continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process.'" 1. Beazley JA (with whom R A Hulme and Garling JJ agreed) said in Calleija v R [2012] NSWCCA 37: "33 In Jago Brennan J, at 47, commented upon the obstacles to a fair trial that are often encountered in the administration of criminal justice, such as adverse publicity, witnesses becoming unavailable and the lack of competent representation. His Honour observed, however, that those matters did not give rise to the need for proceedings to be permanently stayed. As his Honour noted, "[u]nfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial occurs, a trial judge has the responsibility to the parties to avoid the unfairness. However, that responsibility was not discharged by the court refusing to exercise jurisdiction. Rather, it was the trial judge's responsibility to control the procedures of the trial so as to ensure that the trial was ultimately fair." Those observations by Beazley JA were cited with approval in Tootle v R [2017] NSWCCA 328 at [7] (Latham, Beech-Jones and Wilson JJ). 1. The review of a refusal to grant a stay of proceedings depends on the principles concerning the review of discretionary judgments set out in House v The King [1936] HCA 40; 55 CLR 499 at pp 504-505. This is clear from what was said in Medich v R [2015] NSWCCA 281 at [136]-[137] per Bathurst CJ (Beazley P and Hidden J agreeing). Because this ground of appeal appears in an application for leave to appeal after trial, what arises for consideration is not only whether, on the material before the trial judge when the applications were refused, there was error but also whether there is error in the light of what subsequently occurred (Hughes v R). 2. The application for a permanent stay, on behalf of Bandao, was based on the complainant having access to the recorded conversation because that had "taken away any effective cross-examination" from trial counsel. It included that the complainant had had access to, during her examination-in-chief and cross-examination, transcripts of her own interviews with police despite there having been no objection by either defence counsel. 3. As can be seen from the consideration of Ground 1, the submission that the conduct of the Crown had "taken away any effective cross-examination" significantly overstated what had occurred. The effect of the cross-examination of the complainant, both before and after she learned of the content of the recorded conversation, was replete with concessions that could only favour Bandao. Regardless of the explanation given by the complainant for what she had told Ms Tejada, the jury had before them exactly what the complainant had said during the recorded conversation about Bandao not being involved. 4. The trial judge raised with the parties whether a warning, pursuant to s 165, that the answers the complainant had given in cross-examination concerning the truthfulness of what she had said to Ms Tejada in the recorded conversation concerning Bandao's movements might be unreliable because the complainant had been forewarned, should be given. The trial judge well understood that before such a warning could be given it had to be requested by one of the parties. Counsel for Bandao requested a warning pursuant to s 165 if a permanent stay was refused (T 467.22). Counsel for Bruce also requested that a direction be given immediately, as well as in the summing up (T 456.38). The Crown accepted that such a warning should be given (T 465.46). Importantly, the first s 165 warning was given before the complainant was re-examined. 5. The importance of the cross-examination of the complainant is obvious. However, the complainant's cross-examination on behalf of Bruce shows that it was able to be carried out without the disclosure of the recording of the conversation to her. The submissions by Bruce's trial counsel did not substantiate the claim of a forensic disadvantage to Bruce. Nor did the submissions on behalf of Bruce to this Court identify how the cross-examination of the complainant by his trial counsel was adversely affected by the conduct of the Crown. The submissions that were made, both at trial and on this appeal, dealt with the forensic disadvantage to Bandao not Bruce. 6. His Honour appreciated this and dismissed the application for a permanent stay by Bruce out of hand. He did this after he had properly balanced the relevant matters that he had to take into account for a permanent stay. 7. The fact that the warning with respect to the complainant's evidence was given in the summing up without complaint by Bruce's trial counsel indicates that he saw that no unfairness had occurred to Bruce by the complainant having listened to the recording during her cross-examination. Accordingly, no error occurred in his Honour's rejection of the application for a permanent stay by Bruce. 8. As has already been pointed out in relation to Ground 1, it needs to be kept in mind that unlike the usual case of this kind, the Crown case did not depend upon the evidence of the complainant. Her evidence was intended to supplement that of Alcazar. That fact was an important consideration to be weighed by the trial judge when dealing with the permanent stay application. The evidence which was said to have been weakened was not that of the principal Crown witness but concerned cross-examination of a witness whose evidence was intended to support that of the primary Crown witness. It could not be said that the evidence of the complainant went to the root of the trial. 9. It follows, therefore, that the degree of forensic disadvantage did not reach a point where nothing other than a permanent stay would have overcome it. The complainant's denials of Bandao's involvement in the recorded conversation remained as evidence and the warnings pursuant to s 165 of the Evidence Act reduced the probative value of her explanation of those denials as did his Honour's critical review of her evidence in the summing up (see [91] hereof). 10. Bruce suffered no unfairness by the complainant listening to the recorded conversation during his counsel's cross-examination of her. No forensic disadvantage affecting him has been identified, other than the general consideration that if the complainant's explanation of what she said about Bandao in the recorded conversation was accepted by the jury, the attack on her credit would be somewhat weakened. 11. These grounds of appeal have not been made out. Ground 4 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Counts 1 and 2 (Bandao appeal). Ground 2 – The verdict of the jury in respect of Count 3 should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence and the verdicts of not guilty in respect of Counts 1 and 2, the primary Count 3 and Counts 4 and 5 (Bruce appeal). 1. Counsel for Bandao submitted that the account of the complainant was so affected by her intoxication she had no continuous recollection of what had occurred but only a recollection of various isolated events. He submitted that the complainant's memory problems were such that she was unable to distinguish the number of assailants. Her evidence as to the presence of Bandao in the toilet was contradictory. 2. Counsel for Bandao submitted that the evidence of Alcazar was unreliable and was adversely affected by his plea of guilty and by the arrangement, which he had entered into with the Crown, to give evidence in the proceedings. This formed the basis of the warning, pursuant to s 165 of the Evidence Act, given by his Honour in respect of his evidence. Counsel for Bandao submitted that one of the principal difficulties with the evidence of Alcazar was his inability to explain how and when people went into the toilet room. Counsel for Bandao noted that the evidence of Alcazar in respect of Count 2 was directly contradicted by that of the complainant. 3. Counsel for Bandao submitted that it was not in dispute that the toilet room was small so that it was difficult to envisage four people being present in such a small space. Counsel for Bandao submitted that the evidence of the other persons at Bandao's home on the night (Messrs Hradavec and Lim) did not assist the Crown's case in that it did not place Bandao specifically in the toilet area. 4. Counsel for Bandao specifically relied upon the following direction to the jury given by his Honour in relation to Alcazar in his summing up: "In this case members of the jury because of the way the Crown case has been presented to you, and because of the substance of the defence case, it seems to me that it would not be logical for you to have inconsistent verdicts in relation to counts 1, 2 and 3 for each accused. In other words, it seems to me that in relation to counts 1, 2 and 3 on the indictment you should have either three verdicts of not guilty for each accused, or three verdicts of guilty. Similarly, if you get to considering the alternative counts to counts 1, 2 and 3, it also seems to me that you should have either three verdicts of not guilty for each accused or three verdicts of guilty. That is because, members of the jury, you either believe Billy Joe Alcazar beyond reasonable doubt or you do not. If you accept Billy Joe Alcazar beyond reasonable doubt, there is no reason why your verdicts should be different in relation to the counts 1, 2 and 3 if you do not believe him beyond reasonable doubt, there is no reason why the verdicts should be different for 1, 2 and 3." (SU 20.8-21.4, 27.4.2017) 1. Counsel for Bandao submitted that the verdicts of the jury need to be looked at against what the trial judge said so that the directed verdict on count 4 and the acquittals in respect of counts 1, 2 and their alternatives, give rise to a significant risk that the verdict of guilty found by the jury in respect of the alternative count to count 3 was a compromise verdict and therefore was unsafe and unsatisfactory. 2. Counsel for Bandao submitted that the verdict of not guilty in respect of count 1 was consistent with the rejection of the evidence of Alcazar by the jury as to Bandao having been present at the time Alcazar commenced having sexual intercourse with the complainant. Counsel submitted that for that reason it was necessarily inconsistent with a finding of guilt in respect of the alternative to count 3 which required Bandao's presence at that time. 3. Counsel for Bruce made similar submissions as to the evidence. In addition, she had regard to the Markuleski direction (Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82) which was as follows: "When you are considering these individual counts, members of the jury, you have to consider them separately as I have directed you. If you decide that you have a reasonable doubt about one of the charges and you find the accused not guilty on that charge, you are entitled to consider whether that causes you to have a doubt also about other charges on the indictment." (SU 21.9, 27.4.2017) 1. Counsel for Bruce submitted that this direction was defective in that it had imported into it his Honour's personal observation "it seems to me" so that the jury may not have understood that this was a direction of law. Counsel for Bruce submitted that the direction given by his Honour was insufficient in the circumstances of the trial to impress upon the jury the logic required and the use to be made of any reasonable doubt entertained on one count because there was not the force of his Honour's authority behind the direction. 2. Counsel for Bruce submitted that since the jury had rejected any direct sexual offending by Bruce and Bandao (by their verdicts on the other counts), they could only have been relying upon joint criminal enterprise as a basis for the liability found on the part of Bruce and Bandao in respect of the alternative to count 3. She submitted that none of the directions of law by his Honour, nor the evidence, were consistent with a joint criminal enterprise that could stand alone without the first and second counts being proved and without the actual involvement of Bruce and Bandao in the sexual activity, being established. 3. Counsel for Bruce submitted that the evidence in relation to the events immediately before, after or during the sexual activity in the toilet room did not include any conversation, looks, action, directions between the alleged offenders or any activity upon which a joint criminal enterprise could be inferred. She submitted that his Honour's directions and the Crown case did not particularise a joint criminal enterprise in terms other than the "sexual activity" said to have been engaged in by Bruce and Bandao. She submitted that at its highest, the evidence only established that Bruce and Bandao may have been present while Alcazar was engaged in sexual intercourse with the complainant but mere presence did not establish a joint criminal enterprise. 4. Counsel for Bruce submitted that the course and length of the jury deliberations (three days), the communications from the jury including two requests for the summing up and the mixed verdicts, were consistent with and strongly indicative of a compromise verdict in that the verdict delivered by the jury constituted "an affront to logic and common sense". Consideration 1. The challenge by the applicants under these grounds of appeal is twofold. Counsel for Bandao has focused upon the evidence at trial and on contradictions and inconsistencies in that evidence. He submitted that there was insufficient evidence to establish the presence of Bandao in the toilet room at the time that Alcazar was sexually assaulting the complainant. Counsel for Bruce has implicitly accepted that there was evidence to establish the presence of Bandao and Bruce in the toilet room, at the time that Alcazar was sexually assaulting the complainant. In the absence of any evidence as to what they were doing, and in particular whether they were actively engaged in any sexual activity with the complainant, counsel for Bruce submitted that their mere presence in the toilet in such circumstances did not establish that they were engaged in a joint criminal enterprise with Alcazar at the time. 2. In relation to the evidentiary issue, the relevant principles are set out in SKA v The Queen [2011] HCA 13; 243 CLR 400 where the plurality (French CJ, Gummow and Kiefel JJ) said: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses . However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' … 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 1. On the issue of inconsistent verdicts, the relevant principles were set out by Beazley JA (with whom Simpson and Bell JJ agreed) in Regina v James [1999] NSWCCA 191 which summarised the conclusions in R v MacKenzie [1996] HCA 35; 190 CLR 348: "2 The High Court has dealt with this question on two occasions recently. In MacKenzie v The Queen (1996) 190 CLR 348, the appellant, a solicitor, had been charged with two counts of making a false statement on oath (s 327(1) of the Crimes Act) and in the alternative, with two counts of perjury (s 328) in relation to evidence he had given at the trial of a client. The jury convicted on both the s 327 charges, but acquitted on the perjury charges (the more serious charges). 3 A question arose on the appeal as to whether the verdicts were inconsistent, resulting in convictions which were unsafe and unsatisfactory. Gaudron, Gummow and Kirby JJ considered that six general propositions governing the question whether verdicts were inconsistent could be discerned from the authorities. I will attempt to summarise them but regard should be had to the propositions as fully explained at 366-368 of the judgment. (i) There is a distinction between legal and factual inconsistency, the former usually being easier to resolve because "[o]n the face of the court's record there will be two verdicts which, in law, cannot stand together" (at 366). (ii) Factual inconsistencies can be both as between different verdicts affecting the same accused (as in the present case) and different verdicts affecting co-accused. (iii) Where the inconsistency arises upon different counts "the test is one of logic and reasonableness" (at 366). (iv) Given the general respect given to juries and jury verdicts, an appellate court will generally be reluctant to find verdicts to be inconsistent and will not do so if they may properly be reconciled. (v) If however, different verdicts "represent, on the public record, an affront to logic and common-sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty", an appellate court will interfere "to prevent a possible injustice" (at 365). (vi) The obligation to make good the submission that verdicts are inconsistent is upon the person making the submission." 1. The toilet room, where the offences were alleged to have occurred, is shown in photographs 9 – 18 of Exhibit H, in particular photographs 9 and 13. The toilet itself appears well back from the door. The internal dimensions of the room were not the subject of evidence but the room appears to be eight tiles wide by at least eighteen tiles deep. Accordingly, a rough calculation suggests that the room was in the region of 80cm wide and at least 2m deep. 2. The photograph makes it clear that four persons could have fitted into the room as alleged by the Crown, particularly if one of them were small and bent over the toilet. It is also apparent that if four persons were in the toilet room, they could each reach out and touch the other occupants. Alcazar's penetration of the complainant would have been obvious to anyone who was in the toilet room unless that person deliberately looked away. 3. The case for Bruce and Bandao was that they were not inside the toilet room at the time that Alcazar was assaulting the complainant. The evidence in support of their cases was at best contradictory. 4. Mr Lim did not remember Bandao following him to the gate when he went to move his car. He did not see Bandao give Ms Tejada a glass of water. When Mr Lim returned from re-parking his car, he only saw Ms Tejada and Mr Hradavec. Mr Lim did not see Bandao, Alcazar or Bruce either outside or inside the house. 5. Mr Hradavec, whose account of what happened lacked detail, did not remember Bandao being with him and Ms Tejada while she was on the grass, nor when he was bringing her a glass of water. 6. Only Ms Tejada supported Bandao's account and the jury were entitled to reject her evidence. She was clearly not an impartial witness and much of her evidence was designed to exculpate Bandao. Ms Tejada in her statement told police Bandao "went to the bathroom to get the complainant out". Ms Tejada's role in speaking to the complainant on 2 July and recording that conversation confirmed her lack of objectivity. 7. The evidence of Alcazar (albeit the subject of a s 165 warning) as extracted (at [43] hereof), placed Bandao and Bruce in the toilet room while he (Alcazar) was assaulting the complainant. Although Alcazar's evidence concerning the detail of the sexual assaults may have given rise to a doubt about whether the penile-oral and digital-vaginal penetrations as alleged by the Crown as the bases for Counts 1 and 2 occurred, his evidence concerning the presence of Bandao and Bruce was more definite. The jury had a considerable advantage in assessing the evidence which he gave. 8. While Alcazar had committed acts of sexual assault against the complainant and received a discount for giving evidence against Bandao and Bruce, the jury were appropriately warned, pursuant to s 165 of the Evidence Act, concerning his evidence. The jury were entitled to accept his evidence, or part of it, subject to taking the warning into account. 9. As can be seen from the extract of his evidence, Alcazar said that the complainant "was sucking [Bandao] off" and that she "started smoking Bandao and then he [Alcazar] just started rooting her". Accordingly, the evidence of Bandao's commission of an act of sexual penetration with respect to Count 1 was only colloquial. It lacked the detail to substantiate the penetration of the complainant's mouth by Bandao's penis. This lack of precision in evidence, when added to the possibility that Alcazar had penetrated the complainant's mouth with his penis, is able to explain the acquittal of Bandao on Count 1. 10. There are other ways to reconcile Bandao's acquittal on Count 1. The complainant denied any penile-oral penetration when she was examined at Westmead Hospital. That evidence, taken with the possibility that it was Alcazar who committed the act of penile-oral penetration (given the complainant's evidence as to her recollection of the colour of the penis), was sufficient to explain the jury's verdict on Count 1. 11. Although Bruce did not give evidence, it is apparent from the cross-examination of other witnesses by Mr Trevallion, that Bruce accepted that he and the complainant had kissed and that there had been some touching before the assault by Alcazar. It was Bruce's case that he had left the toilet room before that assault occurred. It was, however, well open to the jury to find that Bruce had remained in the toilet after he kissed the complainant and that his behaviour included touching her in a sexual way and that this occurred when Alcazar was assaulting her. It was put to Alcazar that after Bruce and the complainant kissed, Bruce had left the toilet. It was put that Bruce did this to open the side gate to let Mr Lim in. Alcazar said that this "didn't happen" (T 608.11). Mr Lim denied that this happened. The force of Alcazar's denials with respect to Bruce was something which the jury were in the best position to assess. Moreover there was no evidence which placed Bruce outside the toilet room during the whole of the time that Alcazar was inside. 12. Ms Tejada implicated Bruce in her evidence that she saw him leave the toilet room before the complainant. There was undisputed evidence of efforts by Bruce to have Ms Tejada "drop" her statement. That the jury acquitted Bruce of Count 5 is not inconsistent with a conclusion that he had been in the toilet room with Alcazar and that he was the last of the three men to leave. The acquittal was merely a reflection of the paucity of evidence that went to substantiate Count 5. Moreover, there is no inconsistency between an acquittal on Count 5 and Bruce's conviction on the alternative to Count 3 as far as credibility findings go. Count 5 depended on the evidence of the complainant and Ms Tejada, not Alcazar. 13. As already indicated, the jury must have found that Bruce remained in the toilet after he kissed the complainant and that his behaviour included touching her in a sexual way, although they had a doubt that his touching extended to digital penetration of the vagina. There was also Alcazar's strong denial that Bruce had left the toilet room after he and the complainant kissed (T 608.16). These considerations reconcile Bruce's acquittal on Count 2 (TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [128], [130] per Simpson J (McClellan CJ at CL and Latham J agreeing)) with his conviction on the alternative to Count 3. 14. This aspect of the trial, i.e. as to what occurred, when it occurred and what persons engaged in particular conduct, depended very much upon an assessment of the witnesses. Applying the principles summarised in SKA and subsequent decisions by this Court such as Elwood v R [2016] NSWCCA 18 (Meagher JA with whom McCallum and Button JJ agreed), the assessment of such matters is very much a question for the jury which had a significant advantage in doing so over an appellate court. In Elwood v R that statement of principle was expressed as follows: "21 The question for this Court is whether it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt; in other words, "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493. 22 In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury's advantage in seeing and hearing the evidence could have resolved that doubt. The jury's advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence." 1. Applying those principles, I am satisfied that it was open to the jury to find beyond reasonable doubt that the evidence of Alcazar should be accepted to the effect that while he was assaulting the complainant in the toilet room, both Bandao and Bruce were present. 2. That does not end the matter. There remains the issue of whether on the evidence available it was open to the jury to be satisfied beyond reasonable doubt that the actions of Bandao and Bruce at that time were such as to make them participants in a joint criminal enterprise with Alcazar. 3. What is required to establish a joint criminal enterprise was comprehensively restated by Bathurst CJ (Johnson and Fullerton JJ agreeing) in Dickson v R [2017] NSWCCA 78. There his Honour said: "41 It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence. 42 In Osland v The Queen supra, McHugh J explained the operation of the principle in the following terms: "[72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms: 'The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.' [73] In that case, his Honour directed the jury that 'they are all equally guilty of that crime'. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law: '[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.' (Emphasis added.) So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v Tangye. The Court said: '(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.' (Emphasis added.) … [79] The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence. … [93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime [Footnotes omitted]." 43 His Honour's explanation of the principle was approved by the High Court in Huynh v The Queen supra. The Court made the following remarks: "[37] The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that 'one plays a part at its most simple by joining into the agreement'. That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution. [38] A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement." 44 In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Hayne J described the principle in the following terms (referring to McAuliffe v The Queen (1995) 183 CLR 108 at 113-114): "[109] As was pointed out in McAuliffe, the terms 'common purpose', 'common design', 'concert', 'joint criminal enterprise' are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others. [110] In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission. … [112] As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, 'the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind'. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that 'a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it'. The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight." Gleeson CJ and Callinan J agreed with his Honour's remarks ((2003) 219 CLR 1 at [10]). 45 Each of the authorities to which I have referred emphasised the need for the party to the joint criminal enterprise to participate in the enterprise whilst stating that presence at the time the crime was committed is sufficient to demonstrate such participation: Osland supra at [72]-[73]; Huynh supra at [38]. The issue is whether presence at the time of the commission of the offence is necessary for a person to be liable under the doctrine. 46 Although on one reading the judgment of McHugh J in Osland supra and the passages from R v Lowery & King (No 2) (1972) VR 560 and R v Tangye supra cited by his Honour with approval, would tend to suggest this is the case, I do not think the principle is so confined. Indeed, [93] of the judgment of McHugh J in Osland supra and the statement in Huynh supra at [37] that liability attaches to persons who participate in some way in furtherance of its execution, tends to the contrary. 47 In my opinion a person can be liable under the principle if it can be shown that he or she entered into an agreement or understanding to commit a crime and (to adopt the words in Huynh supra at [37]) participated in some way in furthering its execution. Whilst presence at the actual commission of the crime is sufficient, it is not necessary if the person sought to be made liable participated in some other way in the furtherance of the enterprise." 1. In the Summing Up, his Honour directed the jury as to joint criminal enterprise as follows: "Let me try to explain to you what a joint criminal enterprise is. A joint criminal enterprise exists when two or more people reach an understanding, or an arrangement, amounting to an agreement, between them that they will commit a particular crime. It has got to be more than mere association. It has got to be something constituting an agreement between them that they will commit a particular crime. Now that agreement between those two or more people does not need to be express: that is, there might not be any evidence at all of what was said between the alleged participants. The existence of the agreement may be inferred from all the surrounding circumstances – if it is the only rational inference in the circumstances. The agreement does not have to have been reached at any particular point of time before the crime was committed. The circumstances in which two or more people are participating together in the commission of a particular crime may themselves establish an unspoken understanding or an arrangement amounting to an agreement formed between them, then and there, to commit the crime. If the agreed crime is committed, and if all participants to the agreement played some part in committing the agreed crime, all parties are equally guilty of the crime regardless of the part played by each in its commission. Not only must there be an agreement to commit a crime but, to be criminally liable, each participant must do something in pursuance of it. That is, must take some step. Now let me give you some examples unrelated to this case." (SU 27 April 2017, 3.2 – 4.1) 1. His Honour then gave a number of illustrations of what actions might give rise to a joint criminal enterprise and concluded with this example: "These examples can be contrasted with a mother who drives her two adolescent sons to a corner shop. Unknown to her, each son was armed with a knife and the sons had agreed between themselves to rob the shop. When they entered the local shop, the two young men robbed the shopkeeper, as agreed, and ran back to the car. The mother, being taken by surprise, decided to drive off with the young men knowing that something had occurred but not precisely what. The two young men of course would be involved in a joint criminal enterprise of robbery but the mother would not be, because whatever she did was not in pursuance of any agreement." (SU 27 April 2017, 5.2 – 5.6) 1. His Honour returned to that issue later in the Summing Up as follows: "I earlier was referring to the concept of a joint criminal enterprise. In these cases with which we are concerned, the Crown case against Mr Bandao and Mr Bruce is that each of them (together with Mr Alcazar) were part of an agreement (possibly unstated) for each of them to have some form of sexual intercourse with [the complainant]. The Crown says that the necessary and relevant agreement between them was reached by the time Loyd Bandao assisted Patricia Tejada from the toilet, following which Mr Bruce and Mr Alcazar allegedly entered the toilet together, followed shortly thereafter by Mr Bandao. Each of them, the Crown says, then had a form of sexual intercourse with [the complainant] in pursuance of that agreement (which may have been unstated) between them. If you ultimately accept the Crown case beyond reasonable doubt, then that is why Loyd Bandao would be criminally liable for the acts of sexual intercourse actually committed by Mr Alcazar and Mr Bruce; and why Mr Bruce would be criminally liable for the acts of Mr Alcazar and Mr Bandao. The defence case simply put (simply but importantly) is that whilst Billy Joe Alcazar had sexual intercourse with [the complainant], neither of them did. They deny that they had sexual intercourse with her and they deny that they were in that toilet when Mr Alcazar had sex with [the complainant]. I shall return to that later. But when I was giving you a direction about what a joint criminal enterprise means, I said that the existence of the agreement could be inferred. I said that the evidence of the understanding or the arrangement underpinning the joint criminal enterprise does not need to be express but it may be inferred from all the surrounding circumstances. You may, in your role as judges of the fact, draw inferences from direct evidence. There's nothing unusual about that or extraordinary. We do it consciously or unconsciously every day of our lives." (SU, 27.4.2017 14.7 – 15.8) 1. His Honour gave conventional examples of what drawing an inference means. His Honour also warned the jury against entering a compromise verdict and made some observations about the evidence as follows: "But may I warn you about this: the fact that there are multiple counts on this indictment, including the alternatives, should not - and cannot - be used by you to come to some form of compromise. For example, if six of you were of the opinion that the accused were not guilty, not only of the counts on the indictment but also not guilty of the alternative counts and six of you were of the opinion that they were guilty of either the counts on the indictment or the alternative counts, it would be quite wrong of you to say as a jury, "well look, we are log jammed on this. Let's convict them of some simply as a compromise - not because we believe it's true, because our position as a jury is six guilty, six not guilty". If that's the true position, you have not got verdicts. It would be quite wrong for you to say, "well look we're log jammed let us do a deal simply for the sake of getting a result." That must not happen. In this case, members of the jury, because of the way the Crown case has been presented to you, and because of the substance of the defence case, it seems to me that it would not be logical for you to have inconsistent verdicts in relation to counts 1, 2 and 3 for each accused. In other words, it seems to me that in relation to counts 1, 2 and 3 on the indictment you should have either three verdicts of not guilty for each accused or three verdicts of guilty. Similarly, if you get to considering the alternative counts to counts 1, 2 and 3, it also seems to me that you should have either three verdicts of not guilty for each accused or three verdicts of guilty. That is because, members of the jury, you either believe Billy Joe Alcazar beyond reasonable doubt or you do not. If you accept Billy Joe Alcazar beyond reasonable doubt, there is no reason why your verdicts should be different in relation to the counts 1, 2 and 3 if you do not believe him beyond reasonable doubt, there is no reason why the verdicts should be different for 1, 2 and 3. I will come back to him and the evidence shortly." (SU 27.4.2017, 20.2 – 21.4) 1. The Crown, both in its opening and final addresses, raised with the jury the issue of joint criminal enterprise in the following terms. In his opening address he said: "Ladies and gentlemen, the other point that I wish to raise is this aspect, and I've referred to it before, of joint criminal enterprise - what does that mean? His Honour will give you a legal definition; I'm going to give you, I'm not going to give you examples because his Honour also does that and I don't want to steal his Honour's examples, which I know I've been in breach of in the past. It's the joining together in an agreement to commit a crime. Now, we don't have to sit down and sign a piece of paper ladies and gentlemen. It can be evolving, it can be growing and we say that that's the case here. Bandao goes in first, the other two come in, they then commence to act together. The Crown will make no bones about it, we say that a pack mentality developed in that enclosed space. They start to act together. In those circumstances should you find that agreement, and should you find that the agreement was to commit a crime and that crime was sexual assault without consent, then the result and this is the important part is it doesn't matter whose penis goes in the complainant's vagina, whose fingers go in her vagina, whose penis goes in her mouth, if they are acting together, all three are held responsible for the acts of the others because it is a joint criminal enterprise. As I said, his Honour will put it much more eloquently to you at the end of the case but we say they were acting together, so precise sequences, precisely which of the three did what, if they were acting together they are all responsible for the acts of each other." (T 25.23, 23.3.2017) 1. In his closing address the Crown said: "Now, that finishes Ms Tejada and the next witness I want to get to is Mr Alcazar. He's one of those witnesses that's called in the Crown case, in some points he's problematic to the Crown case, other points he is problematic to the defence. He is just one of those people. But before I get to him, you will hear in the summing up, mention of the legal doctrine, joint criminal enterprise. Yet again I premise what I say with that will be a direction of law from his Honour. His Honour gives you directions of law, I don't. But I have to make reference to it in this case. It is simply that if more than one, joint, got to have more than one, so two or more people form the intention to commit a criminal act any criminal act, it doesn't just relate to sexual offences. That agreement doesn't have to be in writing, they don't sit down and write out what they are going to do. It can be tacit, it can be by words, let's go; or acts, joining in. If two or more people form an intention to commit a crime, that crime is committed by one, and the other two have agreed to it and agreed to participate if necessary then those other people are liable for the criminal of the person who actually does the crime. His Honour will put that with much greater refinement and will give you some examples of how it applies a million miles from this case. …" (T 1181.18, 24.4.2017) 1. If, as I have found, it was open to the jury to be satisfied beyond reasonable doubt that when Alcazar was sexually assaulting the complainant in the toilet room, Bruce and Bandao were in that room, the jury must have accepted those parts of Alcazar's evidence which described what he was doing at various times and to a lesser extent, what Bruce and Bandao were doing. This is particularly so in relation to Bruce, although clearly the jury were not satisfied that he had placed his penis in the complainant's mouth. On the basis of Alcazar's evidence, he and Bruce were in the toilet room together and were subsequently joined by Bandao, who had left Ms Tejada sitting on a grassed area outside that room. 2. The issue specifically raised by counsel for Bruce is whether there was sufficient evidence to establish an agreement between the applicants and Mr Alcazar to engage in sexual activity with the complainant and what actions they took, if any, so as to make them equally responsible with Alcazar for his offending against her. 3. There is no evidence of any actual agreement. The existence of an agreement has to be inferred from the actions of the applicants and Alcazar. On that issue, the photographs 9 and 13 of Exhibit H are important in that they show the toilet room and provide clear evidence of its confined space. When one has regard to those photographs, the overwhelming inference to be drawn is that if three young men entered the toilet room in the circumstances of this case and remained there together, while one of them engaged in various forms of sexual intercourse with the complainant, there was a tacit agreement that they together engage in some kind of sexual activity with the complainant. There is simply no other reason why they would enter such a small room together in circumstances where the complainant was bending over the toilet and vomiting. 4. Insofar as the actions of the applicants are concerned, this case needs to be distinguished from that of R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228. The facts of that case involved some of the alleged offenders standing around a bed while one of them engaged in penile-vaginal intercourse with the complainant. There was no evidence that they did anything other than stand around the bed. In this case, the dimensions of the toilet room were such that once it is accepted that the three men were in the room together, they would of necessity have been in such proximity to the complainant as to have been pressing up against her. Because Alcazar was sexually assaulting the complainant, the applicants' presence in such a small room must have, at the very least, served to encourage him to continue that activity. 5. Insofar as Bruce is concerned, there was evidence from Alcazar of him touching the complainant while Alcazar was engaged in penile-vaginal intercourse with her. Whereas it was clear that the jury did not accept that Bruce had engaged in digital-vaginal intercourse, it was open to them to accept that Bruce was touching the complainant in a sexual way but in a way which did not amount to digital penetration of her vagina. The presence of Bandao in the toilet room while Bruce and Alcazar were so engaged, it can logically be inferred, was to also engage in some kind of sexual activity with the complainant. At the very least, there is a strong inference available that his presence in those circumstances was intended to encourage Bruce and Alcazar in their sexual activities. 6. The jury may well have accepted Alcazar beyond reasonable doubt to the extent that while he was having penile-vaginal sexual intercourse with the complainant, Bandao and Bruce were there with him in the toilet room engaging in some kind of sexual activity directed towards the complainant, but were not satisfied that the evidence was such as to establish beyond reasonable doubt that they had committed the precise offences identified in Counts 1 and 2. 7. While such an approach was not directly in accordance with what they were told in the summing up by his Honour, nor in the opening and closing address of the Crown, it is certainly not a farfetched or speculative analysis. The jury knew as a fact that Alcazar had engaged in sexual intercourse of various kinds with the complainant. Once they were satisfied beyond reasonable doubt that Bandao and Bruce were also in the toilet room in circumstances where they had no good reason for being there other than the pursuit of or encouragement of sexual activity directed towards the complainant, the directions which the jury had received in relation to joint criminal enterprise were such as to enable them to bring in the verdict which they did. As the Crown made clear in his opening "Should you find that agreement, and should you find that the agreement was to commit a crime and that crime was sexual assault without consent, then the result and this is the important part is it doesn't matter whose penis goes in the complainant's vagina, whose fingers go in her vagina, whose penis goes in her mouth, if they are acting together". It is also not without significance that the jury requested a copy of his Honour's summing up which set out in detail with examples what actions could constitute a joint criminal enterprise. 8. The explanation of the jury's verdict can be put in a rather more simplistic way based on the small dimensions of the toilet room. Why would three males be in such a small room while one of them was engaging in penile-vaginal intercourse with a heavily intoxicated young woman unless they also were either participating in some way or were encouraging the person known to be actually engaging in sexual intercourse. 9. It follows that I am satisfied that it was open to the jury to find beyond reasonable doubt that the applicants were part of a joint criminal enterprise so as to be guilty of the alternative to Count 3. 10. In relation to counsel for Bruce's attack on his Honour's Markuleski direction, this is without substance. It is true that the direction is not as detailed as that in the Criminal Trial Courts Bench Book but it was nonetheless effective in communicating the essential element, i.e. if the jury had a reasonable doubt about one of the charges they were entitled to take that doubt into account when considering other charges. That direction was given in clear and unequivocal terms and did not involve an express statement that this was merely the opinion of the judge (see [173] hereof). 11. The orders which I propose in relation to each applicant are: 1. Leave to appeal granted. 2. Appeal dismissed. 1. PRICE J: I agree with Hoeben CJ at CL and with the orders his Honour proposes. 2. WILSON J: I agree with Hoeben CJ at CL. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2018