Arizabaleta v R

[2023] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Arizabaleta v R [2023] NSWCCA 217

Hearing dates:

1 May 2023

Decision date:

01 September 2023

Before:

Leeming JA at [1];
Rothman J at [166];
McNaughton J at [219]

Decision:

1. Grant leave to appeal.

2. Appeal dismissed.

Catchwords:

CRIME – appeal against conviction – judge-alone trial – applicant charged with three counts of sexual intercourse without consent – applicant pleaded guilty to digital penetration, and not guilty to counts of penile vaginal penetration and cunnilingus – all offending alleged to take place upon same complainant on same occasion – applicant found guilty of second and third counts – whether primary judge’s findings of guilt unreasonable and cannot be supported by evidence – significance of inconsistencies in complaint evidence – significance of primary judge’s assessment of complainant’s testimony – significance of complainant’s language difficulties – significance of malleability of memory – consideration of appellate review on basis findings of guilt unreasonable – appeal dismissed by majority

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HA, 61I, 578A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Legislation Amendment (Child Sexual Abuse) Act2018 (NSW), Sch 4 [10]

Criminal Procedure Act 1986 (NSW), ss 132, 133, 293A, 294, 294B

Evidence Act 1995 (NSW)

Cases Cited:

AS v R [2022] NSWCCA 291

Dansie v The Queen [2022] HCA 25; 96 ALJR 728

De Silva v The Queen (2019) CLR 57; [2019] HCA 48

Fennell v The Queen [2019] HCA 37; 93 ALJR 1219

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Hossain v R [2023] NSWCCA 18

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Prouten v Chapman [2021] NSWCA 207

RA v R [2020] NSWCCA 356

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210

Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148

Category:

Principal judgment

Parties:

Alvaro Arizabaleta (Applicant)
Crown (Respondent)

Representation:

Counsel:
K Edwards (Applicant)
S Lind (Respondent)

Solicitors:
Hugo Law Group (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/00189230

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2021

Before:

Noman SC DCJ

File Number(s):

2020/00189230

JUDGMENT

1. LEEMING JA: In the District Court of New South Wales, Mr Alvaro Arizabaleta pleaded guilty to the first, and not guilty to the second and third, of three counts of sexual intercourse without consent knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW). “Sexual intercourse” is defined to include digital penetration of a person’s vagina and the application of the mouth or tongue to female genitalia: s 61HA(1)(a)(i) and (c). The first count was digital penetration of the complainant’s vagina. The second count was cunnilingus. The third count was penile vaginal intercourse.

2. Following a judge-alone trial pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the primary judge made findings of guilt on the second and third counts. By reason of s 133(1) of that Act, each finding of guilt has the same effect as a jury’s guilty verdict for all purposes, including the right of appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The single ground of this appeal is that the findings of guilt on the second and third counts are unreasonable and cannot be supported by the evidence. The appeal lies only with leave but the ground is, to say the least, reasonably arguable. There should be a grant of leave and in what follows I shall refer to the appellant.

3. I have concluded that the appeal should be allowed, the findings of guilt on the second and third counts should be quashed, and the appellant resentenced for the single offence to which he pleaded guilty.

Overview of factual background

4. The charged matters all arose from a single encounter in the early hours of the morning, between 3am and 4am, of Sunday 21 June 2020 following a party at a house in Surry Hills, inner Sydney. There was a single complainant. She was not previously known to the appellant. She cannot be named, by reason of s 578A of the Crimes Act.

5. On the day of the offending, the complainant was aged 24 and had lived in Australia for around 18 months. Her native language was Korean. She gave some evidence in English but most of her evidence in cross-examination was given through an interpreter. The appellant is a citizen of Colombia who lived in Canberra and was visiting Sydney that weekend to see his young daughter who was living with his wife from whom he was separated. He was then aged 28. He was a permanent resident of Australia who had been living in Australia for some eight and a half years.

6. An assessment of the appellant’s English fluency may be drawn from his recorded interview. His English is quite fluent, although far from flawless. It is difficult to form a view of the complainant’s English fluency, because there is only a relatively brief sound recording of her evidence. The doctor who examined her for some two hours in the immediate aftermath of the assault recorded:

English was not her first language but she said that she was comfortable without an interpreter. She asked for clarification with some English words and very occasionally used her phone dictionary. Overall her comprehension and expression appeared fair to good.

7. On the other hand, when giving evidence at trial by means of a closed-circuit television facilities in accordance with s 294B(3) of the Criminal Procedure Act, as was her right, the complainant answered questions both using an interpreter and speaking English directly. As will be seen below, the transcript records many questions as being answered twice, once by the interpreter and once by the complainant herself. The transcript suggests, at least to me, that the doctor’s opinion may have been a little generous. If the complainant’s evidence was recorded, no copy was provided to the Court, and so the assessment of the record is confined to the transcript.

8. The trial, which occupied parts or all of four days, was about a small number of disputed facts. The appellant accepted that he had digitally penetrated a sleeping stranger, over a period of 5-10 minutes, constituting a serious sexual assault. There was no issue of identification, or consent, or belief in consent. The only issues were whether the appellant had also committed acts of cunnilingus and penile vaginal penetration upon the complainant.

9. The trial took place some 18 months after the event. Memory is malleable, and so the starting point is the contemporaneous documentary evidence, which was richer than is often the case in matters such as this. It will assist in evaluating that evidence to bear in mind the following chronology of Sunday 21 June 2020, largely based on that evidence.

1. For some hours prior to assault – complainant asleep on a couch in the living room of the Surry Hills premises.

2. Between 3am and about 4am – for around 5-10 minutes, complainant assaulted digitally.

3. Before about 4am – complainant takes photograph of appellant asleep on a different couch in the same living room.

4. Before about 4am – complainant records conversation with appellant.

5. About 4am – complainant photographs appellant’s ID and Facebook page.

6. 4.28am – appellant orders Uber to take him home.

7. 4.28am – complainant messages friend saying she was assaulted.

8. Between 4.30am and 5.40am – complainant driven by Khalel to her boyfriend’s home in Bondi Junction, then travels to police station with her boyfriend.

9. 5.42am – complainant attends Paddington police station and gives history.

10. 6.33-7.10am – complainant taken by ambulance to Royal Prince Alfred Hospital, gives history to paramedic.

11. 7.10am – complainant arrives at hospital.

12. 9.00-11.05am – complainant examined and gives history at Royal Prince Alfred Hospital Sexual Assault Centre.

13. About 2.00pm – appellant attends Surry Hills police station.

14. 4.10-4.57pm – appellant participates in electronically recorded interview.

10. Some aspects of the events giving rise to the prosecution were tediously familiar. The appellant readily acknowledged in an electronically recorded interview he participated in some 12 hours after the events that he had drunk “a lot” of alcohol and had smoked cannabis. The complainant had also drunk alcohol, so much that she had vomited. The agreed facts recorded that she drank five cocktails and a further six drinks that evening, although when giving evidence she said she had consumed less. MDMA was found in her urine, although she denied knowingly having consumed it. She also said that she had consumed two puffs of cannabis.

11. There were also numerous roughly contemporaneous social media records which bear upon what had occurred, which enable the assault to be placed at between 3am and 4am on the morning of Sunday 21 June 2020. The complainant had been sleeping for a number of hours prior to the offending on a couch in one of the living rooms in the terrace house where the party took place.

12. However, most of the events giving rise to the prosecution were unusual. One is that the appellant was a person of otherwise good character who, on his own account, committed a serious sexual assault upon a sleeping woman he had not hitherto met. Two witnesses, including his wife from whom he was separated, attested to his honesty and generosity, knowing of the offence to which he had pleaded guilty. A second is that only minutes after the assault, and with the intention of obtaining evidence of what he had done, the complainant covertly recorded a conversation with the appellant in which she accused him of digital penetration, which he admitted. A third is that the appellant gave the complainant his name, and permitted her to take photographs of his ID and Facebook page. A fourth is that the appellant voluntarily attended the police station and participated in an electronically recorded interview later that day. A fifth is that many aspects of the appellant’s electronically recorded interview are highly unusual and are consistent with a man who was conscious of having committed a serious crime but also who was telling the truth. Finally, and consistently with the appellant’s case that the prosecution had failed to establish the counts of cunnilingus and penile vaginal intercourse, is the fact that the complainant made no mention of the former and only a qualified mention of the latter, despite giving clear and unequivocal accounts of digital penetration in a series of interviews and examinations in which she participated in the immediate aftermath of the offending.

Documentary evidence

13. It is convenient first to address the contemporaneous documentary evidence made by independent witnesses of the events.

Police officer’s notebook

14. First, the handwritten notes of the police officer dated 5.42am when the complainant and her boyfriend arrived at the police station record a complaint that “TOI: before 4am and after 3am … POI rubbed hands on VIC’s backside, fingers inside vagina, VIC believes possibly penis”.

15. The record of the police officer continues:

That POI then slid his hand around to the VIC’s vagina, and inserted his fingers inside. The VIC also believes that the POI inserted his penis inside her vagina.

The VIC stated that her vagina is scratched from the POI’s nails inside her vagina.

Whilst the POI inserted his fingers into the VIC, the VIC moved and the POI exited the room.

The VIC then pretended to sleep on a couch in another room. The VIC approached the POI and confronted him about what had happened. The VIC told him that she was awake throughout the entire incident. The POI admitted to the VIC that he felt her bum and inserted his fingers in her vagina. The VIC took photos of the POI. The POI apologised for what he did. The VIC stated that she recorded some of this interaction. Further, the VIC got some ID from the POI. The VIC allowed me to take a photo of the ID.

The POI stated to the VIC that he needed to leave because he had ordered an uber. The VIC told him to stay, however the POI left shortly after.

16. It was at this stage that the complainant advised that she had spoken to the appellant, who had apologised for what he had done, and that she had recorded this interaction and obtained his ID.

17. The officer’s notes state that the photograph of the ID was timestamped “at about 4am”. The metadata of the photograph was not in evidence. The notes also record that at about 6am, two other police officers spoke with the complainant. Those officers did not give evidence, and if they made notes of anything which was said, they were not tendered.

Ambulance paramedic’s notes

18. An ambulance was called to take the complainant from the police station to hospital. An experienced paramedic accompanied her and made a note of the case description at some stage between 6.30 and 7.30 that morning after she arrived at the hospital. The notes include the following:

Fell asleep on the sofa and was woken up by a male person “fingering” her and patient believes offender might have penetrated her with his penis. Patient states the SA happened 3/24 ago, initially had pain in her vagina/genital area, pain now ceased, unknown if there was any injuries or bleeding to same.

19. The note states that the complainant was “alert, well perfused, orientated, pearl, OBS within normal limits, NOAD”.

Report from sexual assault centre

20. At the Sexual Assault Centre within Royal Prince Alfred Hospital, a (male) medical practitioner examined the complainant in the presence of a (female) registered nurse. He also took her history, this time in the presence of a (female) sexual assault counsellor. The examination and taking of the history took place, according to the report, between 9am and 11.05am.

21. The report recounts the following history:

On the evening of the 20/06/2020, she was at a party at the home of a friend of a friend. She arrived there at approximately 2100-2200h.

She was not feeling well. She was dizzy, felt nauseated and had a headache. She told me that she often vomited if nervous or unwell. She had been feeling faint for the past few days and had seen her general practitioner for this.

She lay down on a couch in the living room and fell asleep. She woke later and felt it was too late to go home and decided to sleep the night on the couch.

She woke again at about 0400h 21/06/2020. She was aware of someone on the couch next to her and touching her. She was not sure how long this person stayed on the couch with her, but estimated the duration to be about 5 to 10 minutes.

During this time she kept her eyes closed because of fear and uncertainty of what to do. The room was dark.

This person, later identified as a man, was behind her, facing her back and she was initially lying facing the back of the couch. He put his hand on her buttock, on the front of her pants and then into her pants. He put one or more fingers into her vagina. This was forceful and “hard”.

She felt her vagina being penetrated again, but this felt different from fingers and she thought it might have been his penis. She did not think that he ejaculated.

He tried to remove her panties but she kept her legs together and he could not.

She changed position, rolling onto her back in order to signal that she was waking. She thought that it was after this that the man left the couch and moved across the room.

It was at this point that she saw that it was a man. He joined a second man who was on a couch across the room.

She got up and using her phone, took a photograph of the first man. She asked the second man to step out of the room. She told this man what had happened. There followed a conversation between the three. She used her phone to record this conversation and to take a photo of the first man’s identification.

Electronic records

22. There was uncontroversial evidence that the appellant left the party in an Uber which had been booked at 4.28am. The evidence did not disclose when precisely the journey commenced, although it did say that the pickup point was the address of the Surry Hills house where the party had taken place.

23. There were also contemporaneous electronic records which were made after the covert recording and her report to police and while she was awaiting the ambulance to take her to hospital.

24. Between 4.28am and 4.29am, the complainant sent the following messages to a close friend, Elena, on a platform which appears to be, or to be similar to, “WhatsApp”. The messages below are reproduced verbatim, including the spelling errors and abbreviations which commonly occur. Elena had also attended the party.

Babe

One of his friends

He rapped me

Raped me

I a bit awake

But he put his finger in my pussy

And be put his dick

25. The text messages stop at that point. There were competing submissions about the last message. The Crown suggested that “be” was a mistyping of “he”. The defence suggested that the sense was “maybe”. The complainant gave evidence at trial that she had intended to type “he”.

26. Then the handset records “Missed voice call”, twice, at 5.33am and 5.34am. These represented unsuccessful attempts by the complainant to call her friend (who gave evidence that when she woke the next morning, at around 9am, she saw that she had messages).

27. Then, between 5.56am and 5.57am, there are the following messages:

I just come to visit him

The brizilan guy

And i reported..

Now im police office

And they called the ambulance for some check

And i need to do more details

28. The “brizilan guy” was identified by the complainant at trial as an acquaintance of the appellant who lived in the Surry Hills house. His name was Khalel.

29. The messages continue over the next few days, with the friend being supportive. Some of the messages suggest the complainant was distressed. I mean no criticism of her; she had just been seriously assaulted by a stranger while she was asleep, and was having to spend hours of her life speaking to the police. For example, she wrote on the Wednesday afternoon “Yesterday i got investigation for over 4hrs its horrible”. One message to her friend, sent on the Sunday evening at 8.35pm, was deleted. It preceded a message, also sent at 8.35pm, “Police said he arrested today and I will go to police office tmr again”. The complainant was not asked about the deleted message.

30. Save for the very first messages reproduced above, none of the messages expressly or impliedly recorded any details of the complainant’s account of the offending.

Evidence of statements made by the appellant

31. A sound recording of the conversation was covertly recorded by the complainant, which, together with the transcript, were tendered without objection at trial. I have listened to the entirety of the sound recording. It lasts some seven minutes. Some of the appellant’s responses are difficult to make out, while the complainant’s voice is much clearer, consistently with her concealing the mobile handset. It is clear from the fact that the complainant did not at that stage know the appellant’s identity that it preceded the appellant’s providing her with copies of his ID. Based on the statement in the police officer’s notebook concerning the timestamp on the photograph of the appellant’s ID being “about 4am”, it follows that the conversation took place sometime before 4am.

31. The recorded conversation proceeds as follows (it followed some unrecorded conversation as to which the complainant and Khalel gave evidence):

[Complainant]: Why you put your hands to my pussy?

[Appellant]: (soft voice) I don’t know. (Inaudible response)

[Complainant]: Because I was so drunk, I was slept.

[Appellant]: uhhuh

[Complainant]: You don’t know me and I don’t know you.

[Appellant]: Yeah

[Complainant]: But why? And I was sleeping.

[Appellant]: (Inaudible response)

[Complainant]: Why?

[Appellant]: (Softly) Coz I’m stupid

[Complainant]: Huh

[Appellant]: Coz I’m stupid

[Complainant]: Pardon

[Appellant]: coz I’m stupid I did something stupid, very stupid

[Complainant]: Stupid?

[Appellant]: mm

[Complainant]: It’s not excuse

[Appellant]: Yeah, it is not.

[Complainant]: Anyway, you raped me, you know what is rape? Without agree you put something hands or something your dick. Your did anyway I can feel it even though I was drunk. I was sleeping I was a little bit awake, but I was scared because I don’t know who you are and I don’t know whose dick, I don’t know whose hands and I don’t know who’s there

[Appellant]: Yeah

33. After asking for and obtaining the appellant’s details and saying she was going to speak to a friend and determine whether she would report to police, the conversation proceeded:

[Complainant]: I’m gonna do. I don’t mind if you were something doing here or not anyway your crime your your your crime raped so if I need I will, cause you shouldn’t do that but you did

[Appellant]: Yeah alright I understand (inaudible response)

[Complainant]: Why you did I can’t understand even you don’t know but you just. Your hands is something put inside the other girls who you never met at before? When the girls they have no, never like out of the mind?

[Appellant]: (Inaudible response)

[Complainant]: Anyway I’m I will talk to my friend now

[Appellant]: Ok (inaudible response)

[Complainant]: You made trouble in his house

[Appellant]: I did

[Complainant]: If I didn’t awake maybe you do something wrong or other things too

[Appellant]: Now I (inaudible response) (Speaking in a foreign language)

[Complainant]: Huh?

[Appellant]: I said to say I’m really sorry I know I shouldn’t have done that and

[Complainant]: But anyway you did

[Appellant]: Yeah I know nothing can take it back for what I did

34. The appellant attended Surry Hills police station at about 2pm that Sunday afternoon. The timing of the attendance and the content of the interview suggest that he did so voluntarily. He was arrested, and confronted with the allegation that between 4 and 4.15am that morning, being 21 June 2020, he had digitally penetrated the complainant’s vagina with his fingers while she was asleep on the couch in the living room of the Surry Hills premises.

35. Early in the interview the appellant volunteered “Oh, look, I don’t know if I’m putting my, the rope on my neck or whatever, but, uh, the allegations are true”. He explained that he did not have any interaction with the complainant at the party prior to the assault. He said “just maybe looking at each other a bit”, but agreed that there was “no talking, no flirtation, [he] didn’t go over to her”. He volunteered that he had smoked some marijuana as well as drinking. The appellant then said that he saw the complainant lying on a couch, sleeping and “I start just touching her a bit”. He drew a picture of two couches facing each other, and said that he and a male friend were seated on one couch with the complainant lying on the other. He then moved to the other couch and sat at its end by her feet. He said that she was sleeping sideways and he was rubbing her back and leg underneath the blanket, although not under her clothes at that time. He then said that he placed two fingers of his left hand inside her underwear and into her vagina. At first he said it was around 10 minutes and he was then asked whether he understood what 10 minutes was because it was a long time. The officer then timed a minute in order to give an indication of how long a minute is, following which the appellant said the following:

Look, I, uh, I got, got a daughter see ….. and I have f, like, this is bad, like, this is the only time I’ve, uh, I would say, I would say, with all due respect, I will kill the bloke that do that to my daughter ….. that’s, uh, that, that’s why I’m, I’m saying everything as it is. I, uh, I would like to apolo, look, ah, I, I can’t do anything just by deal with my own actions and pay for whatever I have to pay. And, but, yeah, no, I just feel very sorry for, for the girl, for, for, for my daughter because, in a---

36. The appellant then stated that he had his fingers in the complainant’s vagina for five minutes and volunteered that he was “wanking myself as well”. He then gave this evidence:

Yes, OK. Did you have your penis out?

[Appellant]: I, I did.

You did. Uh, it was erect.

[Appellant]: It was.

Yep. Did you at, at any point penetrate her, did you put your penis in her vagina?

[Appellant]: No.

Ok. What was the girl doing when you were penetrating her with your fingers?

[Appellant]: Nothing. She just moved, moved a bit, I d, I d, uh, probably uncomfortable, it could have been anything.

37. He gave clear admissions that it did not look as if the complainant was consenting and that he had never received a verbal consent. He then explained the following:

Yep. So you think it’s happened for about 5 minutes. You, while you were digitally, fingers in her vagina, you were also wanking with the other hand.

[Appellant]: Yes.

So you had your left hand two fingers in her vagina while you were wanking with your right hand.

[Appellant]: Ah, I will, I will occasionally use my left hand as well, but---

Ok. So bo, both.

[Appellant]: Yeah.

Ok. Um, did you ejaculate?

[Appellant]: I did.

You did.

[Appellant]: Hmm.

On the couch or---

[Appellant]: On the couch.

On the couch. How did you get rid of the ejaculation?

[Appellant]: I’m sorry?

How did you get rid of the, the fluid that came out of your penis?

[Appellant]: I was pissed, I was pissed, I just put my pants back on.

OK. So you just wiped it with your underwear or---

[Appellant]: Yes.

Are you still wearing those underwear?

[Appellant]: Ah, no, but they’re in the backpack.

It’s in the backpack, OK.

[Appellant]: Yeah.

All right. Um, and did you ejaculate on the couch, do you remember?

[Appellant]: Yes.

You did.

[Appellant]: Yes.

38. The underwear were provided to the police for forensic examination, and a photograph was tendered at trial. The police also took a patch from the semen-stained doona.

39. The appellant then described the confrontation by the appellant in the presence of Khalel:

OK. And then after that, the next memory is, is Khalel and this girl confronting you. How did they confront you, tell me the conversation.

[Appellant]: Ah, she asked me, she asked me if I did what I did.

Uh-huh. And what did you do, what, what did she say, what, what can you remember?

[Appellant]: Ah, I agreed. I said, Yes, I’m really sorry.

But what did she say to you?

[Appellant]: She, she said, she didn’t wanted to leave me, she didn’t wanted me to leave, ah, she asked me for my ID, I gave her my ID, she took a photo of it or whatever she did, and, and then after she got my ID, she I, sort of, let me go, like, yeah. And, and Khalel and, and, and her, so, Khalel was asking me what happened and, and I, and I said, I said to him, well, what happened and she try to ring her boyfriend, I remember. And yeah, I, I don’t know w, why she didn’t ring the police then, I have no idea, I would have stayed, and, yeah, what else, what, what else can I, you help me with saying, like, as in, yeah, it’s all a scatter, scattered here.

40. The officer returned to what had been said during the confrontation between the appellant, the complainant and Khalel:

Um, so, you said Khalel and [the complainant] confronted you, what did they say to you exactly and what did you agree you did?

[Appellant]: I agreed I touched her. She, she, she said to me, Did you put my penis, did you p, you put your penis inside me?

…

[Appellant]: As well, I can tell the difference between a penis and fingers, she said to me. But I said to her, I, I did not, ah, I, I said something rude to her, probably from the context, I said, um, I don’t know, yeah, I know you probably do know how a penis feel. But then I, I said to her right back, I said, I didn’t put my penis in, ah, I did touch you, I did this and this I feel very sorry. I tr, try and apologise. It will never be enough, it was just, it will never be enough for those situations. And, yeah.

41. Shortly thereafter, the officers played the recording made by the complainant. The first things the appellant said were that he remembered the conversation and that he didn’t know that she was recording. He identified himself and the complainant. He was then asked these questions:

So you only put your fingers in her vagina.

[Appellant]: Yes.

At no point did you put your penis in her vagina.

[Appellant]: No.

42. Towards the end of the interview he was squarely confronted, once again, with the allegation that he had not only used his finger but also had put his penis in the complainant’s vagina, which he denied.

43. At no stage was he confronted with any allegation of cunnilingus. The complainant had not told anyone of that at that stage.

44. During oral address before this Court, counsel for the appellant drew attention to the following exchange at the conclusion of the interview:

[Appellant]: Oh my God. Was she, was she bad?

Sorry?

[Appellant]: Was she bad?

Was she bad.

[Appellant]: As in, like, like, mentally.

Um, yeah, so, I haven’t personally met her yet, but, um, the fact that she’s come to the police, she knows that someone’s violated her.

[Appellant]: A hundred per cent.

Yep.

[Appellant]: Can I ask her just a random personal question, what, what’s the worst case scenario for a person like me doing this.

OK. Let’s talk after the recording finishes. At the moment, we’re, we’re audio and video recording, yeah.

[Appellant]: Yeah.

So we’ll just get the Sergeant, he’ll ask you some questions about how the con, conduct of the interview went, um, and then we’ll, we’ll finish the interview process.

[Appellant]: OK. I’m just really sorry. All I’m thinking is of my daughter. Not, not because of whatever happens to me, it’s just because on, on, on what I did and what it, what, what it will mean for her probably if she ever hear that, but that’s on me. I don’t …..

45. There were also numerous statements made by people who attended the party or its aftermath. Six of those statements were tendered. Only one contains any evidence of what the complainant said. It is the statement of the paramedic. It was made on 7 October 2020, and her recollection was based upon the ambulance electronic record. She said that the complainant had told her that “She got woken up by a male person fingering her but she wasn’t 100percent sure if he penetrated her with his penis as well”. The statement also included “The patient when I spoke to her would get intermittently emotional and cry. The patient seemed to be aware of the situation and understood everything I said.”

Contemporaneous statements to police

46. The foregoing almost exhausts the documentary evidence which was brought into existence in the immediate aftermath of the incident. The exception is that the complainant made a statement on 23 June 2020 and Khalel made a statement on 21 June 2020. Both were cross-examined about some paragraphs in those statements. Neither statement was tendered. Neither of those witnesses sought to distance themselves from the statement. Both agreed that their memory in the immediate aftermath of the incident was better than their memory when giving evidence some 18 months later.

47. Khalel said that his statement was made at around 12pm or 1pm on 21 June 2020. The statement recorded that when the complainant confronted the appellant after the assault, she said “You touched my pussy. You had your dick out”, and that she said to Khalel “He touched me. This never happened in my life. I don’t know anyone with the same situation.”

48. I shall address the aspects of the complainant’s contemporaneous statement which emerged in cross-examination when dealing with her evidence below.

Complainant’s evidence

49. The complainant said that she was awake but did not open her eyes, and did not move her body. She was lying on her right hand side, face to the couch.

50. It is clear that the complainant was visibly distressed at times while giving evidence. Early in her examination in chief, just before being asked what happened after the blanket was removed from her body:

HER HONOUR

Q. Ms [xxx], are you finding it difficult at the moment to give this part of the evidence?

A. WITNESS: It’s okay.

Q. Would you like to take a break?

A. WITNESS: I’m sorry.

Q. That’s all right, Ms [xxx]. Would you like to take a break?

A. WITNESS: No. I can tell. So I can feels someone touch my legs.

51. She described the appellant putting first one then two or three fingers into her vagina, and moving them in and out. She felt pain. Her shorts and underwear remained on.

52. She then described being rolled so that she was facing the couch, and “Then he moved my shorts to the other side, like before. And then he licked my vagina.” She said she could “feel the wetness”. The interpreter said that “I could feel him breathing down on me”. She said this continued for a couple of seconds. Again her eyes were closed.

53. She said that she was wearing denim shorts at the time. She gave this evidence:

Q. Can you tell the Court how those denim shorts fit you?

A. INTERPRETER: It’s a little bigger than my size. It was loose, very loose actually.

54. The photograph which was tendered is consistent with the complainant’s description.

55. In answer to what happened next, there was the following evidence:

A. WITNESS: I felt that he tried to put his penis and first he tried to put, like--

A. INTERPRETER: So he didn’t – he – he inserted the part of his penis into my vagina initially. He didn’t insert his penis in one go; he just tried inserting his penis a few times before he inserted part of the penis into my vagina.

56. She explained that, as before, she was lying on her side facing the couch, with her shorts still on, but opened to one side.

57. When asked what happened then, there was this evidence:

A: INTERPRETER: Okay. I was even more scared but then I felt, well, he might just put his – the entire penis into my vagina, so I thought I should alert to him that I was awake, so to do that I turn my upper body aside.

A. WITNESS: I wanted to like let him know that I’m awake for not doing more.

Q. When you did that, when you moved your upper body, did the accused do anything?

A. WITNESS: Yeah. I can hear the footstep sounds like going to the opposite couch.

Q. You could hear the accused move away from you; is that correct?

A. WITNESS: Yeah. Mm-mm.

Q. What, if anything, did you then do?

A. INTERPRETER. I had my mobile phone next to me before I fell asleep. Then I looked for my mobile phone, and I wanted to know – I wanted to see who this guy was, and my mobile phone has got this function that’s night photographing setting which allows me to take a photo even if it’s really dark. So I pointed my mobile phone toward where the man was and took a photograph.

58. She identified that the appellant and Khalel were asleep on the couch opposite her.

59. The complainant then woke up Khalel, told him “about what happened briefly” and asked if he knew the appellant, and was told “I don’t know him very well, but is my friend’s cousin”. She said (through the interpreter) that “Then I told Khalel the accused had raped me”.

60. She gave this evidence:

Q. Did you provide any more detail about what the accused had done to you?

A. INTERPRETER: Yes, him pushing his fingers into me. And he also putting his – inserting his penis into me. So they are the things that I told Khalel about.

61. She said she had a short conversation with the appellant just before she started the recording:

Q. To the best of your recollection, in the words that you used, can you say what you said to the accused man before you started recording him?

A. WITNESS: So, I ask him, “Who are you?” And, “Why did you do that? I know what you’ve – what you have done to me. And I said to him, like, “Why you put fingers to my vagina?” And then after, yeah.

62. She was asked, in chief, why she made the recording:

A. WITNESS: Cause I thought that maybe after that ..(not transcribable).. said, I don’t remember because I was drunk, or I don’t remember like, something like that. Maybe he can lie. So I just think that it can be helpful, like, I needed some evidence cause I definitely know what I – what happened to me. So, yep, that's why.

63. She thereafter took photographs of the appellant’s ID and his Facebook page, tried to speak to her friend, and her boyfriend, but neither picked up. She was taken by Khalel in his car to her boyfriend’s house in Bondi Junction. She and her boyfriend then went to Paddington police station, and from there to the hospital.

64. She was asked about the messages to her friend Elena:

Q. When you wrote “And B put his dick”, is that what you meant to write?

A. INTERPRETER: I don’t know why B is there. Yeah, I was in a rush to write this message after the incident happened, but I can say that I intending to say put his dick, that is correct.

65. She said that when she saw Elena a few days later, face to face, she said to her “Okay, then this guy he put his fingers, he was licking and he was put his dick to my vagina”. This occurred first in a phone conversation, and then at dinner.

The complainant’s cross-examination

66. The complainant confirmed, by reference to a statement made to the police, that she was still feeling drunk when she lay on the couch.

67. She agreed that she did not mention that the appellant had licked her vagina to the people at the house, her boyfriend, the police officer, the ambulance officer and the doctor at the hospital. She asked whether she could say why and was told that she would be entitled to do so in re-examination.

68. She was asked by reference, apparently, to a statement made by her friend Elena, that she had told her, “He put his fingers inside my pussy and he tried to put his dick in as well; that moment I moved and then the guy lick my pussy as well”. In response, she said “Okay I can’t recall exactly what I said to her”.

69. The complainant was then reminded of her evidence in chief given the previous day, which was that the cunnilingus preceded the penile penetration, and then taken to paragraph 18 of her police statement of 23 June, that she could not remember the timing of the cunnilingus, except that it was “after he put his fingers in my vagina”. She said:

A: INTERPRETER: I meant timing – sorry, I meant when I said, “timing” in the statement, I thought they were asking me about what time it happened.

70. There followed this evidence:

Q. Do you agree that in your statement at paragraph 18 you said, “I remember at one stage that that happened.”? Do you see at the beginning of the sentence, “I remember at one stage” and then you go on to say, “He licked my vagina for a couple of seconds.”

A. WITNESS: Mm hmm.

Q. And then, “I cannot remember the timing when this happened but it was after he put his fingers into my vagina. I know that.”

A. INTERPRETER: Because I mean that I wasn’t sure at what time that occurred. That’s what I said.

Q. So what I’m asking you about is whether yesterday the evidence you were giving was accurate.

A. (No verbal reply)

Q. Do you see the – do you understand the difference between your evidence yesterday and the evidence in your statement?

A. INTERPRETER: I’m not sure what’s different.

Q. All right. If it was the case that you told your friend [E]lena about this matter, about the licking, if you told her – and I’ll read it again, “He put his fingers inside my pussy and he tried to put his dick as well. That moment I moved and then the guy licked my pussy as well.” That would be wrong, wouldn’t it?

A. INTERPRETER: So should I say yes or no to your question, Mr Barrow?

Q. I can’t tell you what to say.

A. INTERPRETER: See, my view is the two versions are not different. The order of the actions taken by that – by the accused may have been temporarily confusing to me but what he did to me was accurate – as accurate as I described. I found it very embarrassing and shameful that he licked my vagina so I really didn’t want to talk about it with [E]lena so I didn’t want to do it right to the last moment and then I ended up telling her about it but I really didn’t want to talk about it.

Q. What I’m suggesting, or what I suggest to you, is that during this frightening experience in the middle of the night in the darkness with your face towards the couch that you’ve misunderstood what happened about that. That’s what I want to suggest to you.

A. INTERPRETER: I don’t agree.

Q. Just so that we’re clear, what I’m putting to you or suggesting to you is that you’re mistaken about the accused licking your vagina, that that’s something that didn’t happen.

A. INTERPRETER: I don’t agree with you, Mr Barrow, because although I wasn’t able to see him I was extremely conscious of what’s going on and I knew what he was doing to me.

Q. You accept--

A. INTERPRETER: And then I wasn’t even intoxicated at that stage.

Q. You accept, don’t you, that in your speaking with him afterwards when you woke him you never suggested to him then, did you, that he’d licked your vagina. It was not something you ever raised with him.

A. INTERPRETER: Because there were friends around me and because it was so shameful to talk about that issue. That’s why I didn’t raise it with him.

Q. The whole thing was shameful, wasn’t it?

A. INTERPRETER: As far as I was concerned, the licking part was the most shameful part.

71. The complainant was asked, and agreed, that in her police statement there was no mention of the appellant trying to insert his penis into her vagina two or three times.

72. She said that she told Khalel that he had inserted his penis, but not its entire length.

73. She was asked about her conversation with the appellant before she started recording:

Q. Do you recall the accused at one point telling you that he didn’t penetrate you with his penis, but that he did touch you with his hands? Do you remember him telling you that?

A. INTERPRETER: Well, the reason why I started recording the conversation was that he was denying everything that I accused him of, so to collect evidence of what happened I started to record the conversation, but when I kept asking him anyway the same questions he then admitted that he touched me with his hands, but he denied he inserted his penis.

74. The cross-examination confirmed what the complainant meant when she used the word “rape” when she confronted the appellant in the recording:

Q. You see, at that time on this occasion you understood that rape included someone penetrating your vagina with their fingers, didn’t you?

A: INTERPRETER: Okay, yes, I understood rape was putting fingers and putting penis into my vagina, but indecent assault involved licking and also touching my vagina.

Q. But you understood that the term “rape” would include not just a penis but fingers as well; you understood that?

A. INTERPRETER: So my understanding was that inserting, whether it was a finger or not – inserting constituted rape. So because the accused kept denying what he had done, I wanted to make him realise how serious his act was, so I chose the word “rape”.

75. The complainant accepted that she wasn’t really sure if she told her boyfriend that the appellant had used his fingers or penis. She said she could not recall the exact words she had told the police, or the paramedic or the doctor.

The complainant’s re-examination

76. In re-examination, the complainant was asked why she did not tell the doctor of the cunnilingus:

A. INTERPRETER: No, because if I just talk, if I was going to be examined by the doctor, the examination result will show that the licking, inserting his finger and penis, all of them will be revealed.

Q. Is that why you did not tell the doctor about the licking incident?

A. INTERPETER: Okay, and then also the doctor was a male doctor, so talking about that aspect was a little too touchy.

Testimonial evidence of other witnesses

77. Khalel gave evidence in chief that he lived at the Surry Hills house, that he saw the complainant asleep on the couch, that one of his friends put a blanket on her, that a small family with a young child had attended the party, and that he offered his bedroom to them, and that he and the appellant thereafter fell asleep on the other couch in the same room as the complainant, at around 2am or 3am. He was woken by the complainant, who told him that the appellant had tried to rape her. In evidence in chief, he gave this evidence of what the complainant said:

She told me he was touching her and [he] tried to put his dick inside and she move here and he move it. Something like that he – she told me.

78. He was aware that the complainant was recording the conversation she then had with the appellant. He then drove her to her boyfriend’s house. When asked if she said anything else about what had happened to her, the transcript records that he said:

Not too much. She tried to explain me because she was nervous, she was crying, she never have – never expected that or never ever thought that this happen to her, so she was just ..(not transcribable)..

79. In cross-examination, as noted above, he agreed that he told police in the immediate aftermath of the incident that she had told the appellant, “You touched my pussy. You had your dick out”, and that he had a better memory of what was said then than he did 18 months later.

80. The complainant’s boyfriend gave evidence that he had been at another party that evening and returned home to Bondi Junction. He received phone calls from the complainant in the early hours of that morning, and that when they spoke she said “One guy tried to have sex with me without my permission”. When she met him a little later, he described her as being in shock, and crying a lot. He said that she said, “This guy tried to – he tried to rape me. He tried to have sex with me without my permission”, and he advised her to go to the police. He also said that she said “He tried to take off my short. [He] tried to put his finger on me.” When asked to repeat what she had said, he said:

Right. She say, “He tried to, kind of, abuse. He tried to put his finger on me. He tried to take off my short and have sex with me. Tried to push me.”

81. The solicitor advocate for the Crown asked a further question of that in chief:

Q. You used the words, “He tried to put his finger on me”.

A. Yeah, he tried to first without take off the short. That’s what I understand. He tried to finger her, you know, and after that he tried to take off her short to have sex with her. That’s what I understand.

82. A female friend who met the complainant at a language course had invited her to a party to celebrate her birthday at a different house in Surry Hills. The complainant attended from around 8pm. She said that more than 20 people arrived, that she was concerned about COVID restrictions, and she didn’t want trouble with her flatmates, so the group of people moved to Khalel’s house, which was five minutes’ walk away. She accepted that her own recollection was affected by alcohol. She said that she saw the complainant lying on the couch, and that it did not surprise her because the complainant “sometimes when she gets a little bit drunk gets a little bit sleepy”. She left the house and went home at around 1am. She described the conversation she had with the complainant:

Q. When you had this telephone conversation, and using the words that [the complainant] used, if you can, to the best of your recollection, what did she say to you?

A. So [the complainant] told me she was sleeping in the couch and she felt like someone was lying next to her, and this person started touching her and put his fingers inside of her pussy, and at the beginning she didn’t, like – she didn’t move or didn’t have any reaction, because she was afraid that maybe the person could get aggressive and hit her or something, and when – she also told me that he tried to put his dick inside, and then she moved and she told me that he also in that moment lick her pussy. So when the guy stop, the guy moved to the other sofa where Khalel was, and then [the complainant] woke up and woke me up also Khalel and told Khalel everything that had happened in that moment and both of them, Khalel and [the complainant], woke up the guy and they started asking him, like, “Do you remember what happened? Do you remember what did you do?” and at the beginning he looked like he didn’t know what was going on, but then he say, “Yes I did”, and [the complainant] told me that she recorded the conversation on the phone, and then after that she asked Khalel to take her to Bondi Beach, because in that moment, who was her boyfriend, it was a Brazilian guy, and he was living in Bondi, so Khalel took [the complainant] to his boyfriend’s – her boyfriend’s place and then they went to the police to report what happened.

Q. Do you remember what [the complainant] was wearing that night?

A. She was wearing, like, a black jean jacket and black skirt, as well.

83. Nothing else was said by that witness about any complaint by the complainant.

84. The appellant’s wife, from whom he was separated, gave evidence and was cross-examined as to his character. She said that he was held in high regard by his friends and colleagues and family, and that “He would give you your last dollar and – his last dollar and go hungry if he had to”. She said he had always been “very open and honest with his feelings with his communication” and that he had been “transparent with me, about this situation from the start”. She accepted in cross-examination that his conduct in digitally penetrating the complainant was out of character and not consistent with an honourable and caring person.

Other evidence

85. The results of the forensic tests undertaken may be summarised as follows. Semen was not detected in a high vaginal swab, a high vaginal smear, a low vaginal smear, a vulval smear, a perianal smear and on the complainant’s underpants. The appellant’s semen was detected on a cutting taken from the doona.

86. A mixture of DNA was recovered from the inside crotch of the complainant’s underpants. The major contributor was the complainant. The profile of one of the minor contributors was the same as that of the appellant, and that profile was also expected to occur in 1 in 750 unrelated males in the general population.

87. The complainant’s denim pants were also tested, and the mixture included DNA which was highly likely the appellant’s. A photograph of the appellant’s underpants was tendered, and is visibly stained with semen. A tapelift from the front inside crotch of his underpants contained a mixture which exceedingly likely was a combination of the appellant’s and the complainant’s DNA. The expert accepted in cross-examination that this was consistent with the appellant having penetrated the complainant with his fingers and then touched either his underpants or his penis with his fingers, and in re-examination she accepted that it was also consistent with penile penetration of the complainant’s vagina.

88. In short, the DNA evidence is consistent with the digital penetration to which the appellant pleaded guilty. It is also consistent with the brief cunnilingus and penile penetration alleged by the Crown.

89. The analysis of the doona corroborates one unusual aspect of the appellant’s account, namely, that he masturbated to ejaculation. Plainly that occurred. It is not something mentioned in any of the complainant’s accounts. If she had been aware of it, it is difficult to explain why she did not tell anyone of it, and argument proceeded in this Court on the basis that the complainant was unaware of that fact.

90. In the complainant’s testimonial evidence, she said that after she rolled over, to demonstrate that she was waking up, the appellant stepped away from the couch she was lying on. It is difficult to reconcile her account with the fact of ejaculation. There was no exploration of how the appellant moved his body so as to permit contact by first his fingers, then (on the complainant’s account) his tongue and his penis.

91. There is no reason to doubt the accuracy of the account given by the appellant in his recorded interview that while he was digitally penetrating the complainant with his left hand, he was masturbating himself with his right hand. There is also no reason to doubt his statement that he used his left hand to masturbate himself as well.

92. The was no exploration by the Crown of how the doona had been arranged on the complainant, such that the appellant’s ejaculate was found upon it. Nor was any theory advanced for how the appellant had positioned himself when masturbating to ejaculation (was he sitting on the couch at the complainant’s feet, or was he kneeling on the floor next to her, or standing over her, or in some other position). It is plausible that the appellant’s breathing was heard or even perhaps felt by the complainant as she lay on the couch with her eyes closed.

The unreliability of human memory

93. The starting point is that the complainant presented in court as giving a credible, truthful and reliable account of the assault she had endured. Otherwise, there could not have been findings of guilt on the second and third counts of the indictment. However, contrary to the gravamen of the Crown’s submission in this Court, that is merely the starting point of determining whether the verdicts are unreasonable.

94. The Crown relied heavily on the force of the complainant’s oral evidence, and the clarity with which it was given. Thus it was said:

but the Crown’s response to count 3 is in my written submissions insofar as the response to what’s described as an equivocal complaint regarding penile penetration and in short in relation to not only those allegations earlier on but also that some of the complaints that are made are made in her language difficulties but mainly when she speaks to the police, she’s very clear about that. She’s also able to describe and I think I’ve overlooked this in answer to your Honour’s question, Justice Leeming, but the way that she’s able to describe the events and that takes on some significance in dealing with whether she’s mistaken and that’s that vivid description that she gives of count 2 and how she’s able to describe exactly what happened. She was not in any way uncertain when she gave evidence. She was very clear that what she could feel, she was very alive to it, she knew what was happening, that she had been licked for a couple of seconds. She describes the wetness, she describes the “breathing down on me” and then she says, this is at appeal book 269, “Although I wasn’t able to see him I was extremely conscious of what’s going on and I knew what he was doing to me” and that’s obviously in keeping with how she knew what had been happening to her earlier. Then when she goes on to talk about the penile penetration, she is able to describe it quite clearly that he didn’t insert his penis in one go, he inserted it a few times and she talked about how his penis was erect.

95. All that may be accepted (although I shall return to the statement that the complainant was “extremely conscious of what [was] going on”). But that is not an answer to the difficulties presented by the evidence. The assessment of whether the Crown has proven the elements of counts two and three beyond reasonable doubt requires regard to be had to the whole of the evidence, not merely the powerful testimonial evidence of the complainant given 18 months afterwards. A striking feature of the evidence in this case is that the clarity and unequivocality of the testimonial evidence 18 months after the event diverged from the evidence at the immediate aftermath of the assault.

96. The appellant emphasised the consistently unequivocal complaints of digital penetration, and the consistently equivocal complaints of penile penetration, in the earliest accounts to professional third parties.

EDWARDS: … the pattern was that the complainant made consistently clear and unequivocal complaint of digital penetration and was consistently equivocal or uncertain about penile penetration, and then makes no mention at all of the cunnilingus allegation for six or seven accounts until it’s first made. That of course is the very conduct that was denied in the course of the immediate and detailed admissions.

MCNAUGHTON J: No, the penile conduct was denied; the cunnilingus wasn’t.

EDWARDS: That’s right, your Honour, because that hadn’t been made.

MCNAUGHTON J: So that’s right?

EDWARDS: Yes. His interview was two days before the first complaint of cunnilingus.

97. The clarification made in the transcript extracted above was properly made and properly acknowledged. However, the trial expressly proceeded on the basis, first raised by the primary judge, and adopted by the accused and the Crown, that although the appellant was not confronted in his interview with the allegation of cunnilingus, he had implicitly denied it.

98. How did the case advanced by the Crown accommodate the consistently qualified initial reports made by the complainant of the penile penetration, in contrast with the confident complaint of digital penetration? One possibility, flagged by the Crown in oral submissions in this Court including the submission reproduced above when reference was made to “language difficulties”, is that the police officer, the paramedic and the medical doctor each misunderstood what the complainant was saying.

99. That is, to my mind, extremely improbable. True it is that the complainant’s English was far less than perfect, and true it is that she had just been the victim of a serious sexual assault. Nonetheless, all three accounts, taken by professionals with no reason to do other than to record her account, distinguished between the certainty of the digital penetration with the possibility of penile penetration. If “language difficulties” is the explanation, the same difficulties affected three independent, well-qualified history-takers.

100. Another possibility (and, so far as I can see, in circumstances where the complainant’s honesty is common ground, it is the only other possibility) is that the complainant was at the time unsure as to the penile penetration, and only became clear about it in her own mind subsequently. That is overwhelmingly more likely than something having been lost in translation.

101. A change in memory from being unsure to being certain can come about in at least two ways. One is that in the immediate aftermath of a traumatic assault, a person is still trying to piece together a coherent account of events. The fact that the complainant may have been affected by licit and illicit drugs bears upon this. It is certainly possible that, upon reflection in the period after an assault, a person may have a better understanding of what took place.

102. However, it is also possible that a person’s memory may have become distorted over time. It is not difficult for a belief in a possibility to become a belief in a probability. Nor is it difficult for a belief in a probability to become a belief in the fact. This merely reflects the plasticity of human memory and what happens when the witness is asked, repeatedly, to give his or her best account of what occurred. Every day courts encounter witnesses who genuinely believe their recollections of past events, and find that those beliefs are mistaken.

103. There is nothing novel in those observations. By way of recent example, Katzmann, Charlesworth and O’Sullivan JJ observed in Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 at [129] that:

It is a matter of common experience that memory is fallible. As one former chief justice of New South Wales observed extra-curially, memory is “plastic” and “[w]itnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen (emphasis added)”: JJ Spigelman AC, “Truth and the law” in N Perram and R Pepper, The Byers Lectures 2000–2012 (The Federation Press, 2012, p 250). (Emphasis in original.)

104. In Prouten v Chapman [2021] NSWCA 207 at [12], Meagher JA and I made the same point, and emphasised that it was far from novel:

Some witnesses are good at lying. Probably much more frequent are those witnesses who have come to believe the truth of their testimony, unreliable though it may be. Human memory is unstable and malleable at the best of times, and the practices and incentives of litigation exacerbate the position. For many decades judges have been conscious of the limitations of their ability to discern anything meaningful from the demeanour of a witness. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [23]- [25], statements by Sir Thomas Bingham, Lord Devlin, Browne LJ, MacKenna J and Sir Richard Eggleston QC were collected by Ipp JA in support of the proposition that “it is no wonder that judges and jurists of the highest eminence have expressed deep scepticism about the reliability of demeanour findings.”

105. There is also a collection of decisions and writings reproduced in The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [165] by Davies J, including by Lord Pearce, Leggatt J (as he then was), Sackar J, McLelland CJ in Eq, Keane JA, Hallen J, to which may be added Bell CJ’s comments in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]. Both Bell CJ and Davies J referred to Leggatt J’s judgment in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). His Lordship said at [15]-[17]:

[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) …

106. Those observations accord with my own understanding of memory and my own experience in litigation.

107. The occasion for the statements summarised above was civil litigation. However, they are also in large measure applicable to many criminal trials. In particular, I agree with his Lord Leggatt’s identification of the two common (and related) errors in [16], to suppose that the stronger or more vivid a recollection is the more likely it is to be accurate, and to equate the confidence of a witness in giving evidence of his or her recollection with the probability that it is accurate. A witness who acknowledges that he or she did not see or hear everything that occurred, or cannot be certain of order, or of the words that were spoken, and recognises the fallibility or his or her memory, may very possibly be giving more accurate evidence of his or her recollection than one who claims to have a clear and distinct memory.

108. Acknowledging the fallibility and malleability of human memory is a matter of fact, which involves no question of law. But in any event the matters mentioned above have been endorsed at the highest level in this country, in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81], upon which the appellant relied:

Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.

109. Did the evidence when viewed as a whole exclude the possibility that the complainant’s equivocal recollection immediately after the assault actually reflected the possibility that she was mistaken? The Crown’s emphasis in submissions about the clarity of the testimonial evidence at trial, 18 months later, does not address the issue, and explicitly makes both of the mistakes identified by Leggatt J reproduced above. This is not a case where doubts may be resolved merely by reason of the powerful testimonial evidence of the complainant, in circumstances where it is accepted that she was honest and trying to do the best she could to describe what occurred.

Doubts emerging from the evidence at trial

110. First, it is clear that the complainant did not fully appreciate all that was happening around her while she was being assaulted. Not only were the complainant’s eyes closed, but she did not appreciate that the appellant was masturbating himself, nor did she appreciate that his semen was left on the doona. The fact of the matter is that all the witnesses who mattered had consumed alcohol to excess and illicit drugs. The complainant said in the sound recording she made that “I can feel it even though I was drunk”. There is no reason to doubt that the complainant was accurately describing that she was intoxicated at least to some extent when she was assaulted, minutes before.

111. Secondly, there is the absence of any complaint of cunnilingus until (a) the complainant’s telephone conversation with Elena on 22 June 2020 and (b) her police statement on 23 June 2020. In particular, she said nothing about cunnilingus:

1. in the conversation she was covertly recording with a view to obtaining evidence of the appellant’s offending;

2. in the initial report to the police who would form a view about laying charges;

3. in the history she gave to the female paramedic who was treating her, or

4. in the history she gave to a doctor and sexual assault counsellor.

112. The primary judge was well placed to observe that speaking about the cunnilingus was the most distressing aspect of the complainant’s evidence. Her Honour was of that view, and this Court should respect it, although it is clear that the complainant was also distressed when giving evidence about other topics (see for example the transcript reproduced at [50] above). Aside from the sound recording, this Court has only the incomplete and imperfect record of the transcript.

113. There may be at least two reasons for the complainant’s distress. One is that favoured by the Crown, in that it explains why the complainant did not mention cunnilingus to anyone in the immediate aftermath, namely, because she found it extremely shameful. The other is that the complainant was acutely conscious that she had not mentioned cunnilingus in her first complaints, making that aspect of her evidence weaker than the other aspects of her evidence. Those two considerations are not mutually exclusive. Both are inherently plausible. Indeed, I am certain that the complainant, whose evidence gives the impression of an intelligent young woman, appreciated that she had not mentioned the act of cunnilingus at the time, and that when she was being cross-examined, that would be a point on which she would be pressed. Early in her cross-examination, in a passage to which [67] refers, the complainant sought to volunteer why she had not mentioned it, which suggests she had anticipated what was, after all, an obvious line of questioning.

114. To be clear about this, it is quite possible that the complainant had at all times a clear and distinct recollection of the appellant licking her vagina, and that she deliberately refrained from telling any of the people that aspect of the assault she had suffered, because of the shame it caused her. But that is not the issue. The issue is whether the Crown has negatived as a realistic possibility that her genuine and sincere evidence 18 months later when giving evidence was in fact incorrect, and in truth the most reliable evidence was her initial accounts.

115. Thirdly, if the single act of cunnilingus described by the complainant occurred, then it occurred either before or after the penile penetration. The statement of Elena made at the time recorded the complainant’s recollection as, “He put his fingers inside my pussy and he tried to put his dick as well; that moment I moved and then the guy lick my pussy as well” (for what it is worth, that order of events accorded with Elena’s testimonial evidence, too). The statement the complainant made to the police on 23 June 2020 expressly acknowledged, referring to the licking of her vagina for a couple of seconds, that “I cannot remember the timing when that happened but it was after he put his fingers into my vagina”. The complainant’s testimonial evidence in chief, 18 months after the event, unequivocally had the cunnilingus preceding the penile penetration as the complainant said “And then he licked my vagina” in response to a question asking what happened next after the accused put his fingers in her vagina.

116. When evaluating the evidence as a whole, it is necessary to have regard to those inconsistencies. That is not to overstate their importance. The appellant’s submission based on this aspect of the complainant’s evidence was an appropriately modest one:

I’m not suggesting that there would be doubts solely from the absence of these details but I am suggesting that those sorts of details would have given comfort and would potentially have resolved a doubt and they’re not there and they’re not supportive of someone who is sure or to put it another way they certainly don’t contradict the reasonable possibility that she is mistaken.

117. Fourthly, it is necessary to address the cogency of the appellant’s electronically recorded interview. He acknowledged being drunk and having consumed cannabis (although it would not have been difficult for that to have been established). He acknowledged digital penetration from the outset, before knowing that his admission had been recorded (although he knew that he had admitted as much to the complainant in the presence of Khalel). He volunteered exposing his erect penis. He volunteered masturbating himself to ejaculation, something of which the police and the complainant were unaware and which was discreditable, but which was undeniably true.

118. It is possible that the appellant believed he was giving a true and candid account of what had occurred, but because of his intoxication had forgotten the acts of cunnilingus and penile penetration, which on the complainant’s account were brief compared to the digital penetration. It is also possible that in every other respect of his evidence he was telling the truth, but in his denial of penile penetration he was lying. The only other possibility is that the entirety of his recorded interview was truthful, including his denials of penile penetration.

119. This Court has the same advantage as the primary judge in relation to the impressions formed from the recording of the interview. I have seen the interview. It is possible that the appellant was lying when he denied penile vaginal intercourse, but it is difficult to reconcile that possibility with the sustained emotional response which is presented. There is force in the submissions made on his behalf in this Court:

He volunteers that he ejaculated which wasn’t known to them, that’s at AB196. He brings his underpants which are visibly stained with semen with him in a bag to the police station, that is at AB196. He is teary and remorseful but he’s also self-loathing. There is no minimisation, there is no attempt to explain himself. He says at one point and it’s with real force and emotion, “I will kill the bloke that do that to my daughter. I can’t do anything just I deal with my own actions and pay for whatever I have to pay”. When he talks about apologising to the victim, the complainant at 193 and then at 199 he says, “It will never be enough”.

He also bats away life buoys that another offender might have thought were being offered to him by the police. I’m not saying that’s what they were doing but he doesn’t take any opportunity to minimise his contact. She says she moves and he says “probably because she was uncomfortable” at 195. They say, “Was there any flirtation”? He says, “No” at 182. They ask him, “Did you have any indication of consent”. He says, “No” at 195. They says, “What about, was she moaning at all, did that make you think that she was consenting”. He says, “No”, that’s at 207. Then there’s a strange interlude where having given the whole account, the police officer says to him at 199, “What happened, what happened” and he says, “I don’t know”. So there’s never an attempt to minimise his behaviour, there’s never an attempt to defend his behaviour, there’s never an attempt to explain his behaviour. He’s just remorseful and he’s apologetic and the trial judge accepts that he’s extremely remorseful.

…

All of those factors that I have just gone through, the ten or so or whatever they are, they’re not just about it’s an aberration. They are someone who is unburdening himself. That is someone who has done the worst thing he’s ever done in his whole life but he has made a decision to, in his words, “deal with my own actions and pay for whatever I have to pay” knowing that his residency is at stake, knowing that his relationship with his daughter is at stake, he even says to her “one day my daughter is going to find out about this and I will have to confront that”.

All of these things point away from someone who is playing ducks and drakes about the full content of the event and I’m not being silly when I say a man who brings underpants to an interview at a police stations is not being strategic or selectively hiding anything, he has no idea what these forensic examinations are going to reveal. That in our submission really warrants full weight both legally and factually, and that gets fed into the complaint evidence.

120. There is one other aspect in which the recorded interview aligns with the complainant’s original recounting of events. Khalel (the man whom she woke immediately after the assault), made a statement to police on 21 June 2020 (the very day of the assault) in which he recalled that she had told him “You touched my pussy. You had your dick out”. It is not improbable that Khalel recalled the very words which the complainant spoke to him when she woke him, very distressed, earlier that morning, and that his recollection was accurate. That account wholly coincides with what the appellant himself told the police he had done on the same day.

121. The appellant pointed to the combination of the equivocal aspects of the complainant’s account with his immediate unqualified admissions:

This is an exceptional case where someone has made immediate admissions up front to a very serious sexual assault but he’s always consistently denied the one thing that she’s not sure about and they work together very powerfully in my submission.

122. To reiterate, on the Crown case, the complainant was mistaken three times when she gave an account to a police officer, to the paramedic and to the sexual assault service in the hospital. On the Crown case, she correctly gave unequivocal accounts that she had been subject to digital penetration, but she mistakenly gave equivocal accounts on three successive occasions that she had been subject to penile penetration.

123. One possibility is that she was suffering the trauma of a serious sexual assault, and for that reason gave an equivocal account of the penile penetration. But the issue is whether there is a reasonable possibility that the accounts she gave in the immediate aftermath of the assault were more reliable, such that she was correct merely to have a belief that she might also have been subject to penile penetration, and in fact she was correct to have formed an equivocal opinion because that had not occurred.

124. If the Crown had not excluded as a reasonable possibility the proposition that the most reliable evidence of what occurred was the complainant’s qualified accounts in the immediate aftermath of the assault, there was a variety of reasons why the appellant might be unsure of the appellant’s conduct when assaulting her. It was said that:

there’s a few possibilities also as to why something may feel different. One is that the penetration was intermittent, so it was stopping and it was starting. Another is that there are issues with her perceptions at the time in terms of positioning on the couch, drowsiness, possible effects of intoxicants. The third one, and I venture that with some caution because I don’t want to start engaging in speculation and I apologise for how graphic this will be, the account that he gives in his interview is that he’s penetrating with his left hand and he’s masturbating with his right hand and then he switches over to change hands. It’s never clarified with him when he talks about switching hands what he’s doing with his right hand. He does say he uses his left. So that, as I say, I’m reluctant to engage in conjecture but that is another possibility but there’s also the mere fact, there’s also she says that he’s changing the number of fingers. He says he’s not changing the number of fingers and there’s absolutely nothing in it for either of them to be fabricating that, that’s just merely different perceptions of what’s going on at the time. In my submission no, there’s too much uncertainty and there’s too much variability in what would be going on for that inference to be drawn beyond reasonable doubt and in my submission that’s the heart of the case.

125. There is force in that submission. In the circumstances of this trial, findings of guilt could not properly be based on a complainant’s equivocal belief that she had been subjected to acts of cunnilingus and penile penetration.

Conclusion

126. Counsel for the appellant was conscious of the temptation in this case to resort to the advantage enjoyed by the primary judge who saw the complainant give evidence under cross-examination, and permit that advantage to resolve any doubt which might be felt. I think counsel for the appellant was correct in that respect. I have no doubt that the complainant, by the time she gave evidence 18 months later, genuinely and sincerely believed that she had been subjected to acts of cunnilingus and penile penetration. But I do not accept that her evidence permits this Court, tasked with evaluating the evidence as a whole, to conclude that the Crown had discharged its onus to the criminal standard.

127. It is necessary to draw these threads together. By way of summary, after reading the transcript of the complainant’s evidence, and after hearing the conversation she recorded, it is clear that her English while not perfect is amply adequate to distinguish certainty from possibility. It would be a far-fetched or fanciful coincidence if three independent, professional history-takers made the same mistake as to whether they had in fact heard unequivocal accounts of penile penetration but had recorded different variations of that unequivocal account (“believes possibly”, “believes offender might have penetrated her with his penis”, “she thought it might have been his penis”).

189. Over and above the foregoing, the evidence of the complainant was not only clear, it was rational and well-based. Thus, the complainant differentiated the digital penetration on account of it being painful and uncomfortable. Further, the complainant differentiated that feeling from that which she described as the penile penetration.

190. The reasonable possibility of an alternative to this occurring, raised by Leeming JA in his reasons, does not, with great respect to Leeming JA, withstand scrutiny. It is accurate that the complainant did not see all that was occurring. Apart from the relative positions of the complainant and the applicant, the complainant accepts that for most, if not all, of the events her eyes were closed. Nevertheless, she was able to differentiate the feeling of the applicant’s penis from the different feeling associated with the digital penetration. Further, the complainant was able to differentiate the moistness of the applicant’s mouth and tongue from the other events.

191. While it is accepted that there was a reasonable possibility that the applicant was, as he stated, masturbating with his other hand at the time some of these events occurred, such conduct does not account either for the feeling of the penis or the feeling of moistness. If the moistness was caused as a result of the masturbation, then semen would have been detected in the lower vaginal swab. It was not.

192. Historically, earlier complaint in criminal cases, with the exception of sexual offences, could never be the subject of admissible evidence. In sexual assault cases, the fact of complaint, if it were provided as soon as immediately practicable, could be the subject of evidence, in order to overturn the now abandoned presumption of consent. However, the terms of the complaint could never be adduced in evidence.

193. When the legislature promulgated the Evidence Act 1995 (NSW), and its Commonwealth and State counterparts, the terms of the complaint became admissible, because the complainant was a witness who was to give evidence and the hearsay exception to relevant evidence was excluded, for that reason.

194. Nevertheless, leaving aside a direct inconsistency such as would arise if further conduct was denied or described differently, a determination that an inconsistency arises from the circumstance of an omission of detail, particularly of sexual assault, for the reasons already given, needs to be dealt with in a manner that understands recent learning on the behaviour of victims and their capacity to recount events in detail, either immediately or for some period. In this case, the inconsistency upon which Leeming JA relies is an implied inconsistency arising from the failure to give the details of the performance of cunnilingus in the earliest complaints, even though the detail was given in testimony in court. In my view, the implied inconsistency associated with that issue does not overcome the benefit enjoyed by the trial judge in observing the evidence adduced in court and, therefore, does not give rise to a doubt that would warrant interference with the fact-finding exercise.

Conclusion

211. As should be clear from the foregoing, the circumstance that Leeming JA may have come to a different view on Counts 2 and 3 does not, by itself, result in a conclusion that the trial judge “ought” to have had a reasonable doubt. The trial judge observed the evidence. The complainant was cross-examined appropriately and skilfully. The trial judge concluded the complainant was not only truthful but reliable. The trial judge’s conclusion arises from the advantage enjoyed by the trial judge; an advantage of which this Court does not have the benefit.

212. Notwithstanding the view I have expressed as to the role of this Court in the circumstances of this appeal, I have independently come to the view that I do not have a reasonable doubt as to the guilt of the applicant on Counts 2 and 3. In circumstances where there are two versions of events, there is always a theoretical possibility that the version accepted by the decision maker at trial is inaccurate or wrong and the version not accepted by the decision maker at trial is correct.

213. In criminal proceedings, it is necessary, as was noted by the trial judge, for the trial judge to be satisfied beyond reasonable doubt of the version of events provided by the complainant. [13] Where there are different versions of events as to a charge before a court, it is necessary to ensure, in the case of a jury by suitable direction, and in the case of a judge-alone trial in the approach to be taken, that the question is not answered simply by concluding which of two versions should be preferred, unless, of course, the preferred version is that of the accused.

     13. Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65.

214. Even where a complainant’s version of events is the preferred version, the court is not able to convict an accused unless it is satisfied, beyond reasonable doubt, of the truth of that evidence. The truth of the evidence in the foregoing context includes its accuracy. It is necessary for the decision maker to be satisfied positively, that the version of events given, which inculpate the accused (the applicant in these proceedings) does not give rise to a reasonable doubt.

215. In De Silva [14] the High Court dealt with the Liberato direction in the following terms:

“[11]   The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused’s answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused’s version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.” (Footnotes omitted.)[15]

14. De Silva v The Queen (2019) CLR 57; [2019] HCA 48.

15. Ibid, at [11] (Kiefel CJ, Bell, Gageler and Gordon JJ).

216. In the absence of independent evidence which may cast doubt on one version or another, the mere fact that there are two versions given, which are opposed in whole or in part, will not, in and of itself, give rise to a reasonable doubt, assuming, for present purposes that the correct test is applied. Theoretically, it is always possible that a person is lying or mistaken. Alternatively, it is always possible that a person thought to be lying may be reliable and telling the truth. In the absence of independent evidence, the determination of truthfulness and reliability derives from just the kind of advantage that a decision maker has in seeing and hearing evidence.

217. There is no error in the approach of the trial judge. Otherwise, I accept the analysis of the evidence of McNaughton J.

218. As a consequence of the foregoing, I agree with the orders proposed by McNaughton J. The Court should grant leave to appeal and dismiss the appeal.

219. MCNAUGHTON J: I have had the advantage of reading the draft judgment of Leeming JA. Regretfully, I am unable to agree. Unlike Leeming JA, I am of the view that the verdicts of guilty on Counts 2 and 3 are not unreasonable and can be supported having regard to the evidence.

220. At trial, as well as giving evidence about the uncontested digital penetration, the complainant gave clear and unequivocal evidence that the appellant briefly performed cunnilingus upon her, and also briefly penetrated her with part of his penis. The arguments that the verdicts are unreasonable are essentially based on a lack of consistency in complaint in relation to the penile penetration (Count 3), and the delay in complaint in relation to the cunnilingus (Count 2).

221. Before considering the arguments, it is convenient to set out the relevant principles which relate to the unreasonableness of a verdict.

General principles

222. The principles have been conveniently summarised in AS v R [2022] NSWCCA 291 (“AS”) at [100]-[108] (Adamson J). Although these principles refer to a trial by jury, they are relevant to a trial by judge alone:

“Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW):

‘The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence …’

The relevant principles which govern how an unreasonable verdict ground should be addressed were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ):

‘1)   This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.

2)   It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.

3)   If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.

4)   A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant’s guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.

5)   A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. 

…’

[Footnotes omitted.]

Thus, this Court must determine whether it was ‘open’ to the jury to find the applicant guilty or whether a jury ‘must have had a doubt’: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. In other words, this Court must determine whether it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

In Pell, the High Court said further, at [53]:

‘There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it.’

The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). This constitutional principle has certain consequences.

First, it will not generally be appropriate, where evidence has been pre-recorded or recorded, for the appellate court to review it to form its own view of the credibility of particular witnesses on the basis of their presentation, since this is the function of the tribunal of fact: Pell at [36]-[38].

Secondly, in an appeal such as the present one, the function of this Court must proceed on the assumption that the evidence of the complainants was accepted by the jury as credible and reliable: Pell at [39].

Thirdly, there are consequential constraints on the extent to which an appellate court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

‘… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.’

Further, in assessing evidence of particular witnesses, particularly complainants, for the purposes of determining an unreasonable verdict ground, the experience of courts can be taken into account. This experience includes that it is not uncommon for victims to remember specific details about the assaults but not tangential details. In Reed v R [2006] NSWCCA 314 Spigelman CJ said at [64] (McClelland CJ at CL and Sully J agreeing):

‘Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.’”

(Emphasis in original.)

223. I also refer to the following passage of Hamill J in AS at [147]:

“The presiding Judge has emphasised, quite correctly, the ‘constitutional’ role of the jury and the advantages it enjoys. That role, and those advantages were explained in M and, more recently, in Pell. These advantages include more than the jury’s opportunity to see and hear the witnesses give evidence:

[…]

[‘]The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury.’”

(Footnotes omitted.)

224. It is also important to bear in mind the observations of McHugh J in M v The Queen (1994) 181 CLR 487 at 534; [1994] HCA 63:

“It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital – such as the account of a conversation in a fraud case or the description of a person where identity is the issue – discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.”

225. Further, as I stated in Hossain v R [2023] NSWCCA 18 at [261]:

“That the order or details of some aspects of the account were not consistent is not unusual, as observed by McCallum JA in RA v R [2020] NSWCCA 356 at [45]: ‘It is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred.’ And as McHugh J stated in the passage from M (above at [236]):

‘If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.’”

Consideration

226. First, a number of matters can be noted about the complainant’s evidence at trial.

227. It is clear that the digital penetration exceeded the other two sexual assaults in both duration and painfulness. Although the complainant was not sure how long the digital penetration lasted, from her account it can be gleaned that it went on for some time. She stated in evidence:

“A. WITNESS: And also I was lying down on the right side and because it was short pants, so my bottom is out a little bit through the--

A. INTERPRETER: Exposed.

A. WITNESS: Exposed. And he touched my bottom as well. And then but - but I just still didn’t move at all. I just lie down because I was scared so I couldn’t do anything, like frozen. And after that he put his fingers, first one finger, because I can feel like one finger, and put my vagina like - because he could--

A. INTERPRETER: Because I felt him removing my shorts to the side.

A. WITNESS: Yeah. And he put his finger in my vagina, like, and he - like in and out four or five times, and after that he put his two or three fingers in and out again, yeah, to my vagina.”

228. In answer to a question as to whether she felt any pain while this was happening, the complainant stated:

“A. WITNESS: Yeah, it was - like I feel like the nail is scratching inside and it really hurt and it feel really uncomfortable and sort of painful.”

229. After explaining that the appellant then attempted to unbutton her shorts two or three times and failed, but then successfully pushed her legs apart, the complainant gave evidence of further pain resulting from continued digital penetration:

“A. INTERPRETER: […] Then he started putting his fingers into my vagina, and moving my (as said) fingers again, like before. It really, really hurt at the time, almost like he was crushing the walls of my vagina. Because he was doing it so, in such a rough manner, I almost fell off the couch. Then he pulled out his fingers. Then he rolled my body over to the window so I was facing the couch as a result.”

230. The complainant was “not sure how long” the appellant had his fingers inside of her when she was in that position with her legs open on the couch. Her concern was that he might “push ahead” and rape her (meaning penile penetration) at that moment. On any view therefore, the digital penetration must have occurred over several minutes.

231. The complainant then gave evidence about the cunnilingus, which, in comparison to the digital penetration, took place over a very short time – “A couple of seconds”.

232. The complainant stated, after the appellant had moved her back over to the couch so she was facing the couch, “he moved my shorts to the other side, like before. And then he licked my vagina.” She was asked what she could feel when this happened. She stated:

“A. WITNESS: So I can feel the wetness and of course I can feel it’s not from me and also I can feel the --

A. INTERPRETER: I could feel him breathing down on me.”

233. She confirmed that her eyes were closed.

234. She was then asked what happened next. She stated:

“A. WITNESS: I felt that he tried to put his penis and first he tried to put, like--

A. INTERPRETER: So he didn’t - he - he inserted the part of his penis into my vagina initially. He didn’t insert his penis in one go; he just tried inserting his penis a few times before he inserted part of the penis into my vagina.”

235. She further stated, “I could feel that his penis was erect”. Via the interpreter, the complainant stated she was scared that he might put his “entire penis” into her vagina, and that she thought she should alert him that she was awake, “so to do that I turn my upper body aside”. The complainant then stated herself, “I wanted to like let him know that I’m awake for not doing more.” She then heard footsteps going to the opposite couch, and then she looked for her mobile phone. She then turned her camera onto a night photography setting and proceeded, as set out by Leeming JA, to obtain a photograph and then conduct a conversation.

235. It is important to remember that it was uncontested that the complainant had her eyes closed for the entire period of the assault. In other words, she could not see whether or not the appellant had his penis exposed or not. All of her evidence came about from what she felt.

236. Given this, it is significant and powerful that the very first objectively recorded complaints, within minutes of the assault, support the complainant’s account at trial in relation to Count 3.

237. The recorded conversation between the complainant and the appellant includes the following:

“Anyway, you raped me, you know what is rape? Without agree you put something hands or something your dick. Your did anyway I can feel it even though I was drunk. I was sleeping I was a little bit awake, but I was scared because I don’t know who you are and I don’t know whose dick, I don’t know whose hands and I don’t know who’s there”.

(Emphasis added.)

239. The two mentions of “dick” in this recording (particularly the second mention) could only have come about if the complainant had indeed felt the appellant’s penis. She did not see it. She must have felt it. There is no qualification to this account. There was no denial of either allegation by the appellant at this time.

240. The next objectively recorded complaint, again within only minutes of the assault, is also clearly powerful support for the complainant’s account at trial. In text messages to her friend, Elena, after stating that she had been “raped”, she texted at 4:29am: “But he put his finger in my pussy” and “And be put his dick”. Again, the mention of the appellant’s penis, within minutes of the assault, could only be because she had felt it. The complainant confirmed at trial that “be” should be read as “he”. Again, it can be observed that there is no qualification to this account.

241. The fact that there were two objectively proved complaints within minutes of the assault mentioning the appellant’s penis (which she could not have seen) powerfully supports the account the complainant gave at trial.

242. The trial judge observed in her verdict judgment at [82]-[83]:

“There are two pieces of evidence that allow for the actual words used by the complainant to be assessed rather than reliant on a hearsay account or a narrative in indirect speech. This in in the recording and the texts.

I accept the evidence supports that the accused denied penile penetration prior to the recording commencing. The complainant referred in the recording to the accused using ‘something, hands or something, your dick’ and repeated both ‘dick’ and ‘hands’. That is, within minutes of the incident, she referred to both digital and penile penetration. She used the same phrasing for both.”

243. In my view, these are cogent observations which accord with my own assessment of the evidence.

244. The other complaints made by the complainant were either recounted by others whose first language is not English, or were strangers to the complainant, and in circumstances where the complainant’s first language was not English.

245. It can also be noted that at each point where the complainant was giving evidence at trial about the partial penetration of the appellant’s penis, she used the services of the interpreter. Through the interpreter it was conveyed that only part of the appellant’s penis penetrated her vagina. Such an account clearly aligns with the evidence of the position in which she was lying on the couch, and that she still had her loose shorts on.

246. In cross-examination, it was suggested that the complainant was mistaken about the appellant penetrating her with his penis. She rejected that. Just before those questions and answers, she stated that, “when an erect penis is inserted into my vagina I was concerned that it may have made me pregnant”, and further, “I knew that he had inserted part of his penis into me.” Again, those portions of the complainant’s evidence were provided using the interpreter.

247. Further, the evidence at trial of the police officer who took the complainant’s first complaint at the police station was that “she also said that he inserted his penis into her vagina as well.” This was not suggested in cross-examination to be a mistaken account. He agreed in cross-examination that his first handwritten note which (relevantly) stated “VIC believes possibly penis” was taken “literally as I’m talking with her I’m just trying to get as much as I can in”, but that his handwritten note taken five or ten minutes after, when “I’ve gone back into my notebook and taken more extensive notes” included the following, “[t]he VIC also believes that the [person of interest] inserted his penis inside her vagina.” The police officer referred to that latter note as having been prepared “when I’m able to sit down and take proper notes”.

248. In addition, the formal statement the complainant made to police two days after the assaults was also made with the assistance of an interpreter, and the complainant in that statement clearly said she “felt a hard dick being pushed into my vagina from behind […] he thrusted his penis once inside my vagina and I couldn’t stand it anymore”.

249. In my view, the comments of the trial judge at [86] of the verdict judgment were cogent and align with my own views. Her Honour stated:

“References that suggest the penile penetration was not successful, also are to be viewed in the prism of her account of what occurred. That is, that there was not complete penetration but only one occasion of partial penetration.”

250. The accounts the complainant made to strangers which contained equivocation in relation to the penile penetration are reasonably explicable by shock, distress, and embarrassment, combined with the complainant’s limited acuity in English. So far as some of the complaints were made to people whose first language was not English, this is also a factor.

251. Further, in my view, the findings of the trial judge at [90] entirely accord with my independent assessment of the evidence at trial:

“She was alert after the digital act commenced. Her senses were heightened as she was focussed on her concern there would be penile penetration. She had her eyes shut during the entire episode and was reliant on other senses to detect what was occurring. She moved to stop the penetration when she understood it to be penile penetration. The hastiness of the ejaculation, with spillage on the blanket and the accused’s underwear is consistent with this account. […]”

252. The findings of the trial judge at [92] also entirely accord with my own assessment:

“[…] To the extent that [Kalel] recounted the complainant accusing the accused of having his penis exposed, this can only be derived from a feeling. It was common ground, her eyes were shut the whole time. She could not have seen the accused’s penis.”

253. As to Count 2, and the delay in the complainant complaining about the act of cunnilingus, it can be observed that not only was the act of very short duration, she also said that she was particularly ashamed of this act. The credibility of this claim is supported by the observations of the trial judge where her Honour noted the “observable distress on each occasion she addressed this act in her evidence”. Further, the sensations she referred to in her evidence, being that she could feel the wetness and the appellant’s breath, are clearly not able to be confused with digital penetration. As stated by the Crown in its closing address, this “visceral description of physical sensation is precisely in accordance with the alleged act. This act [did] not continue for very long. The complainant stated it only lasted for a couple of seconds. The complainant did not embellish or overstate this. It was short-lived.” The trial judge accepted the complainant’s explanation for her failure to make an early complaint about this act. In my view, the brevity of this act, combined with her shame, readily explains her late complaint.

254. It is also apparent that the trial judge properly directed herself in accordance with ss 293A and 294 of the Criminal Procedure Act 1986 (NSW). Those sections read as follows:

293A Direction may be given by Judge if differences in complainant’s account

(1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.

(2) In circumstances to which this section applies, the Judge may direct the jury—

(a) that experience shows—

(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii) trauma may affect people differently, including affecting how they recall events, and

(iii) it is common for there to be differences in accounts of a sexual offence, and

(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and

(b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

(2A) A judge may, as the judge sees fit—

(a) give a direction in this section at any time during a trial, and

(b) give the same direction on more than 1 occasion during a trial.

(3) In this section—

difference in an account includes—

(a) a gap in the account, and

(b) an inconsistency in the account, and

(c) a difference between the account and another account.

294 Direction to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest—

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the Judge—

(a) must direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) must direct the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) must not direct the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a direction.

(2A) A judge may, as the judge sees fit—

(a) give a direction in this section at any time during a trial, and

(b) give the same direction on more than 1 occasion during a trial.

(3) If the trial of the person also relates to a domestic violence offence alleged to have been committed by the person against the same victim, the Judge may—

(a) also give a warning under section 306ZR, or

(b) give a single warning to address both types of offences.

(4),(5) (Repealed)

255. Section 293A was inserted into the Criminal Procedure Act in 2018 by Sch 4[10] of the Criminal Legislation Amendment (Child Sexual Abuse) Act2018 (NSW). The first iteration of s 293A is mostly similar to the version used today however, it originally did not contain subs 2A.

256. Section 293A was introduced in light of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

257. The following statement was made by the then Attorney General, Mark Speakman, during the second reading speech for the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW):

“Schedule 4 [10] amends the Criminal Procedure Act 1986 to provide for a new type of jury direction. It will allow a judge to provide a jury with educative information to prevent a jury making incorrect assumptions as a result of inconsistencies in a complainant's account of a sexual offence. These inconsistencies may arise within a complainant's in-court evidence, or between their evidence in court and their out-of-court statements. The direction will allow the judge to tell the jury that experience shows that people may not describe a sexual offence in the same way each time, that it is common for there to be differences each time a person gives an account of an offence, and that trauma may affect how people recall events. The direction aims to prevent a jury from assuming that these sorts of inconsistencies mean the complainant is lying.” ^[16]

16. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 at 7-8.

258. In any event, it is not the position that the complainant’s account of penile/vaginal assault commenced with equivocation and firmed up over time, as suggested on the appeal. Rather, the complainant’s account commenced with two objectively proved and unequivocal mentions of the appellant’s penis in the complainant’s own words, in circumstances in which she could only have felt it. That is, both digital and penile penetration of the vagina were mentioned almost immediately after the assaults. This aligned entirely with the complainant’s unshaken evidence at trial. It also aligned with the complaint given to the police officer at the police station when she first attended, as recorded in the officer’s “proper notes”.

259. The subsequent equivocal accounts to others can properly and reasonably be accounted for because the complainant was a young woman whose first language was not English, trying to convey (without an interpreter) the concept of partial penetration rather than full penetration of a penis, in a foreign country, whilst distressed and embarrassed, and in some instances, making complaints to people whose first language was not English.

260. Further, as noted above, the delay in complaint in relation to the cunnilingus can readily be explained by the particular shame felt by the complainant, as well as the brevity of that act. In addition, to the extent that one of the complaints by the complainant to her friend was that the cunnilingus occurred after the penile penetration (rather than before), that is an example of what McCallum JA observed in RA v R [2020] NSWCCA 356 at [45] (as set out above) that “[i]t is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred.”

261. As to the level of inebriation of the complainant, the trial judge observed that on the recording made just after the assaults, the complainant presented as “speaking clearly and with no obvious signs of intoxication”. She had vomited by this stage and had also slept for a number of hours. It can also be noted that blood and urine tests conducted on the complainant only a couple of hours after the assaults were negative for alcohol.

262. As to the appellant’s level of inebriation at the time of the assaults, the appellant in his interview admitted that in addition to two or three beers earlier in the afternoon, he had “maybe eight beers” and “a quarter of a bottle of rum” and was “pretty drunk” that night. He had also consumed cannabis. At another point in the interview, the appellant admitted that he was “absolutely pissed” and “passed out sort of thing or fell asleep” when he returned home after the party. Such a high level of inebriation is entirely consistent with disinhibited conduct including brief acts of cunnilingus and penile vaginal penetration from a sexually aroused man of otherwise good character. That the appellant denied the penile vaginal penetration but admitted the digital penetration is consistent with an attempt to downplay his criminality in circumstances where he may well have been of the view that penile penetration was significantly more serious than digital penetration and where the contested acts were relatively quick. Whilst acknowledging that the onus of proof always remains on the prosecution, it can be noted that the appellant’s account was neither under oath nor subject to cross-examination and is thus capable of being regarded as less weighty than evidence of a witness given under oath: Mule v The Queen [2005] HCA 49 at [21]; (2005) 79 ALJR 1573.

263. It can also be noted that the trial judge observed the complainant give evidence over a substantial period of time. Her Honour stated at [94]:

“I have found the complainant to be a truthful witness. There is nothing about her manner or her responses that caused me to consider that she was not doing her best to give truthful evidence. As reflected earlier, there is concern about her accuracy on some occasions. That observation is one I’m cognisant of but do not regard as infecting the counts. I accept the circumstances she was in, given the acceptance she had been sexually interfered with by a stranger, and that she was recounting a highly personal event to others well explains imprecision and inconsistency.”

264. Her Honour found the complainant to be a truthful and accurate witness on both counts. Her Honour stated that in determining the reliability of the complainant, she had regard to a number of criticisms. In finding the offences proven beyond reasonable doubt, her Honour also accepted beyond reasonable doubt that the appellant had actual knowledge of the lack of consent.

265. Having independently assessed the evidence for myself, as well as taking into account the advantages of the trial judge in seeing and hearing the witnesses give evidence, I am of the view that the verdicts of the trial judge are not unreasonable and can be supported having regard to the evidence. I would dismiss the appeal.

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Endnotes

Decision last updated: 01 September 2023