Bell v R - [2017] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bell v Regina [2017] NSWCCA 207
Hearing dates: 26 & 29 May 2017
Date of orders: 29 May 2017
Decision date: 28 August 2017
Before: Bathurst CJ
McCallum J
N Adams J
Decision:
1. Grant the applicant leave to appeal.
2. Appeal allowed.
3. Quash the convictions of the applicant.
4. Enter verdicts of acquittal.

Catchwords: CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence – whether certain utterances could constitute admissions pursuant to s 81 of the Evidence Act 1995 (NSW) – consideration of the course of trial
Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 61L, 344A(1)
Criminal Appeal Act 1912 s 6(1)
Criminal Procedure Act 1986 (NSW) ss 133(1), 159, 293
Evidence Act 1995 (NSW) ss 38, 39, 42, 81(1)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Category: Principal judgment
Parties: Kenneth Bell (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
N Williams (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/132092
Publication restriction: Statutory non-publication order re identity of complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

3 June 2016

Before:

Herbert DCJ

File Number(s):

2013/132092

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted of three sexual offences after a trial by judge alone, being assault with an act of indecency, sexual intercourse without consent and attempted sexual intercourse without consent. The applicant was assaulted in custody while on remand for these offences and suffered a traumatic brain injury. He was initially assessed as unfit to stand trial, but his condition subsequently improved to a point that he was considered fit. His impaired ability to process information prompted the application for a trial by judge alone, to which the Crown consented.

The applicant and the complainant had been in an ongoing relationship for a number of months. That relationship ended, however they remained on friendly terms and the applicant regularly visited the complainant. On 28 April 2013 the applicant gave the complainant a massage. The complainant alleged that during the massage the applicant inserted a finger into her vagina in a rough manner without consent, touched and kissed her breasts and nipples without consent, and attempted to insert his penis into her vagina without consent.

There were significant inconsistencies in the complainant’s versions of events, as between various statements made prior to giving evidence, between those statements and the evidence given in court and within the account given in court. The complainant was unable to remember which versions she had recounted to various people and therefore unable to explain her inconsistent statements. The inconsistencies related to whether the applicant was at her home uninvited on the day of the alleged assaults, how the alleged digital penetration had occurred, whether the complainant had kissed the applicant goodbye after the alleged assaults, why the complainant did not tell police the applicant was in her laundry when they attended her house, why the applicant was at her home that night, and her failure to mention that her neighbour had visited during the massage. The trial judge considered those inconsistencies but was not prepared to make findings that any particular inconsistency reflected adversely on the complainant’s credit.

The applicant’s neighbour gave evidence that the applicant in later conversations had suggested she wasn’t sure if the applicant had assaulted her. This evidence was rejected by the trial judge. The trial judge also found that the evidence of the ongoing relationship between the applicant and complainant after the alleged offences reflected poorly on his credibility. Adverse inferences were drawn by the trial judge in relation to evidence given by the applicant for the first time at trial that a consensual act of cunnilingus had occurred. The trial judge also rejected evidence of a motive to lie, namely that the applicant’s ex-husband had threatened to have her children removed if she did not cease her relationship with the applicant. The trial judge also made findings that evidence of complaints were consistent with the Crown case.

Audio recordings of four gaol calls were admitted at trial, over objection, pursuant to s 81(1) of the Evidence Act 1995 (NSW) as admissions. The applicant maintained that in the calls he was discussing the allegations, not admitting that the described conduct had in fact occurred.

The sole issue on appeal was whether the verdict of the trial judge was unreasonable or could not be supported by the evidence.

The Court held (Bathurst CJ, McCallum and N Adams JJ), allowing the appeal and entering verdicts of acquittal:

The inconsistencies in the complainant’s evidence

(i) The differing accounts given by the complainant and her inability to remember which versions were recounted to various people impacted adversely on the reliability of her evidence. It was necessary for the trial judge to scrutinise her evidence with considerable care to satisfy herself that the offences in question were committed. The approach of the trial judge did not give the necessary degree of scrutiny to her evidence: [40], [48], [54], [62], [70], [74], [83] (Bathurst CJ, McCallum and N Adams JJ).

Rejection of the neighbour’s evidence

(ii) The trial judge did not provide any explanation as to why she was prepared to accept the evidence of complaint to the neighbour, but did not accept the neighbour’s evidence that the complainant was later not sure about the occurrence of the offences. It is difficult to understand why this evidence was rejected where the neighbour had no motive to lie and was a friend of the complainant: [90] (Bathurst CJ, McCallum and N Adams JJ).

Ongoing relationship evidence

(iii) There was uncontested evidence that the applicant and complainant continued to have a close relationship after he was released on bail for the alleged offences. Counsel at trial was prevented from cross-examining the complainant about this relationship because the trial judge was of the view that it contravened s 293 of the Criminal Procedure Act 1986 (NSW). None of the evidence sought to be adduced, with the possible exception of “kissing”, attracted the need to consider s 293. The evidence was relevant to the complainant’s credibility and as to whether the relationship was ongoing: [97], [174] (Bathurst CJ, McCallum and N Adams JJ).

(iv) When considering whether any adverse credit finding could be made against the complainant for resuming a close relationship with the applicant after the alleged assault, her Honour minimised the seriousness of the allegations, expressing a view that the ongoing relationship was not significant because the allegations were so minor. Conversely, when considering the relevance of the ongoing relationship to the credit of the applicant, the allegations were described as “heinous”. No adverse inference should have been drawn from the fact that the applicant continued to reside with the applicant when released from custody on bail: [97]-[101] (Bathurst CJ, McCallum and N Adams JJ).

Evidence of consensual cunnilingus

(v) The trial judge made a finding adverse to the applicant’s credit that he raised an act of cunnilingus for the first time at trial, in circumstances where the trial judge stopped the Crown from informing the Court that it had been a joint forensic decision at the commencement of the trial not to adduce evidence of the fact that the complainant had given an earlier account to a nurse that referred to an act of cunnilingus. In addition, the trial judge personally criticised counsel for the applicant for making inappropriate comments when she attempted to inform the Court of these matters. The judge ought to have allowed counsel to state the joint position. It is difficult to see how the applicant’s evidence on that issue could fairly be the basis for an adverse credit finding against him. It is consistent with what the complainant first told the nurse: [104], [107], [169] (Bathurst CJ, McCallum and N Adams JJ).

Motive to lie

(vi) There was direct evidence that the complainant’s ex-husband had threatened to have her children removed if she did not break up with the applicant. The trial judge found that this alleged motive to lie would not be a motive for making a false complaint of sexual assault but did not state why this was so. The trial judge made no finding as to the credibility of the complainant in these circumstances. A conclusion that the motive prompted her to lie about the sexual assault was open on the evidence. The existence of the motive cast further doubt on the complainant’s credibility and reliability: [126]-[128] (Bathurst CJ, McCallum and N Adams JJ).

Complaint evidence

(vii) The circumstances surrounding each of the “complaints”, which the trial judge considered aided the credibility of the complainant, diminishes the force which they may otherwise have had. These circumstances included that the complainant did not contact police to make the complaint (rather, her ex-husband did so, prior to the occurrence of the alleged assaults), she remained in the company of the applicant for most of the day after the alleged assaults, they kissed goodbye when they parted company, he was welcome to return to her home that evening, and she did not disclose to police that he was at her premises when they attended and she made the initial complaint: [136]-[137] (Bathurst CJ, McCallum and N Adams JJ).

“Admissions”

(viii) The four gaol calls which were adduced as evidence of admissions do not contain admissions. In relation to three of the calls, the applicant is clearly describing what he has been charged with, rather than making any admission of guilt. One of the calls is more ambiguous, but in the context of the other three calls which were made close in time using similar language, it cannot be concluded this call contained an admission: [148]-[150] (Bathurst CJ, McCallum and N Adams JJ).

Intellectual difficulties

(ix) There was little justification for the disparate treatment of the cognitive difficulties of the complainant and the applicant. The trial judge relied on the absence of expert evidence as to the extent of the applicant’s brain injury and found that he was clearly an “intelligent man with a good recollection of the events in question”. The prosecution did not require the extent of the injury to be formally proved and counsel for the applicant twice offered to tender expert evidence: [156], [160] (Bathurst CJ, McCallum and N Adams JJ).

The course of the trial

(x) The trial judge made remarks during the course of the trial calculated to discourage counsel from asking for time to obtain proper instructions in circumstances where there was undisputed evidence the applicant had substantial difficulties in absorbing and digesting information: [162] (Bathurst CJ, McCallum and N Adams JJ).

(xi) The trial judge interrupted the opening address for the applicant, suggesting she was beyond the scope of what was allowed under s 159 of the Criminal Procedure Act by giving “some sort of factual thing”. A factual account of the matters in dispute is within the scope of that section: [163] (Bathurst CJ, McCallum and N Adams JJ).

(xii) On two occasions the trial judge stopped counsel from providing important information to the court as to what was or was not within the brief of evidence served by the Crown, characterising such information as “evidence from the bar table.” It was appropriate for the parties to inform the Court as to what was and was not in issue: [164]-[169] (Bathurst CJ, McCallum and N Adams JJ).

(xiii) The trial judge restrained counsel for the applicant from cross-examining a Crown witness, after the Crown successfully applied for leave to cross-examine his own witness during re-examination. The evidence of that witness was important to the applicant. The trial judge appeared determined to contain the exploration of this evidence in a manner that was unfair to the accused: [179] (Bathurst CJ, McCallum and N Adams JJ).

(xiv) The matters raised about the manner in which the trial was conducted, taken cumulatively, would have led to a new trial as what occurred amounted to a substantial miscarriage of justice. The trial was in many respects conducted on a basis unfavourable to the accused: [180] (Bathurst CJ, McCallum and N Adams JJ).

Conclusion

(xv) There is a real doubt that the applicant committed the offence and this is a doubt which should have been shared by the trial judge. The trial judge’s reasons do not dispel that doubt but rather fortify it: [181] (Bathurst CJ, McCallum and N Adams JJ).

Judgment

THE COURT: Kenneth Bell (the applicant) was convicted of three sexual offences after a trial by judge alone. He appealed to this Court against the convictions and the severity of the sentences imposed. As the sole ground of appeal against conviction gave rise to a question of mixed fact and law, leave to appeal was required. On 29 May 2017, we ordered that the convictions be quashed and that verdicts of acquittal be entered, reserving our reasons. These are our reasons for making those orders.
The appeal took an unusual course. The applicant suffers from profound cognitive impairment as a result of having been assaulted whilst in custody on remand in respect of the charges the subject of this appeal. Shortly before the hearing of the appeal, following discussions with his legal representatives as to the manner in which the appeal should be conducted, the applicant informed them that he wished to terminate their services. At the outset of the hearing of the appeal, Mr Coady, who had been briefed to appear for the applicant, informed the Court that his instructions at that point were confined to seeking an adjournment. An affidavit sworn by the solicitor on the record for the applicant revealed a basis for doubting the applicant’s capacity to give proper instructions at that stage.
In the circumstances, before determining the future course of the hearing, we invited the Crown to address the Court first, confining attention to the conviction appeal. The Crown, very fairly, acceded to that request. After considering the Crown’s written and oral submissions and the written submissions filed on behalf of the applicant, we were persuaded that the appeal against conviction should be allowed and that it was not necessary to hear from the applicant before making orders to give effect to that conclusion. In the circumstances, it was not necessary to determine an application that had been foreshadowed before the hearing for leave to rely upon an additional ground of appeal, or to consider the appeal against sentence.
The applicant’s cognitive impairment also had an impact on the course of the trial. The charges against him arose from a single incident on 28 April 2013. The applicant and the complainant had previously been in an intimate relationship and, so far as the applicant understood, remained friends as at that date.
The applicant was arrested on 29 April 2013 and was refused bail. He was assaulted on 14 June 2013, suffering a traumatic brain injury. He underwent surgery and spent two weeks in hospital.
The applicant was granted bail in the Supreme Court on 19 July 2013 but was returned to custody after breaching his bail conditions by resuming regular contact with the complainant. That happened again.
As at December 2014, the applicant was assessed unfit to stand trial. Although his condition subsequently improved to a point where he was considered fit, his impaired ability to process information prompted his legal representatives to make the application for a trial by judge alone. The Crown consented to that application.

Circumstances of the offence

The evidence is considered in detail below. It is convenient to introduce that discussion with a brief summary of the Crown case. What follows is drawn primarily from the Crown opening at trial. The complainant was aged 28 years at the time of the alleged offences. She was married but had been separated from her husband for a number of years. She had three daughters, then aged 2, 5 and 7. The applicant had an adult daughter who lived in the same street as the complainant.
The complainant and the applicant had been in an intimate relationship for some time before April 2013. The evidence as to when their relationship began and ended was unclear and the relationship itself was one of fluid description. The complainant’s evidence was that they were together for a continuous period of about six months commencing in about October 2012.
It was common ground at the trial that, for some months before 28 April 2013, the applicant and the complainant were in an intimate relationship and were living together at her house. It was also common ground that, after that relationship ended, they remained on friendly terms. The applicant regularly visited her and helped her around the house and there were occasions during that period when consensual sexual activity took place.
The complainant suffered from scoliosis which frequently caused her back pain. It was a regular feature of their relationship that the applicant would give her massages to ease her pain. Sometimes, but not always, the massages led to sexual intercourse.
On the evening of 27 April 2013, the applicant and a friend, a man named Blaise, travelled to Parramatta together so that Blaise could collect some medication. The complainant collected them in her car and they all went back to her place, where they consumed a large amount of alcohol. The complainant became ill and vomited.
During the night the complainant exchanged a number of text messages with her ex-husband informing him that the applicant was at her house and that she wanted him out. The messages represented that the applicant was uninvited and had let himself in, which was contrary to the evidence of the applicant at trial. The complainant gave contradictory accounts as to how the applicant came to be at the house that day, initially stating to police that he had let himself in, but in cross-examination stating that she did not remember whether he did so that day. The detail of the messages is considered later in this judgment.
The following day, the complainant felt unwell. The Crown case was that the applicant attempted to give her a cuddle in the kitchen area but that she told him she was not feeling well and that she was not in the mood for a cuddle. The applicant then offered her a massage and she agreed. They went to the bedroom and she removed her top. She was not wearing a bra. The applicant massaged her, starting at the upper back and making his way down towards her hips. At some stage during the massage a neighbour, Sharon White, came to the front door. The complainant went to speak to her before returning to the bedroom to have the massage continued.
The applicant pulled the complainant’s tracksuit pants down lower, together with her underwear, and massaged her legs and bottom. It was the Crown case that the complainant told him at that stage that she did not want to have sex as she was not in the mood.
The applicant started to rub her groin area and “touched the side of her vagina”. It was the Crown case that, at that stage, she grabbed his hands and told him that she did not feel comfortable and “please don’t”. The Crown alleged that the applicant then inserted a finger in the complainant’s vagina in a rough manner and that that was done without her consent. That was the basis of count 2 on the indictment, a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).

It was the Crown case that the applicant then rolled the complainant over onto her back and commenced to massage her stomach and chest area and that he, at some stage, touched and kissed her breasts and nipples. That was the basis for count 1 on the indictment, a charge of assault with an act of indecency contrary to s 61L of the Crimes Act.
The Crown alleged that the applicant then leant over the complainant with his hands on either side of her upper body and that, whilst he was in that position, he used one of his hands to remove his own pants and expose his penis. The Crown alleged that he grabbed hold of his penis and attempted to insert it into the complainant’s vagina and that she was resisting that attempt by placing a hand over her vagina saying “please don’t, I don’t want to”. It was the Crown case that the accused continued to attempt to insert his penis in her vagina and that he attempted to push her hand away from that area before desisting. That was the basis of count 3 on the indictment, a charge of attempted sexual intercourse without consent contrary to s 61I and s 344A(1) of the Crimes Act.

Ground of appeal

The only ground of appeal in relation to the conviction is “that the verdict of the trial judge is unreasonable or cannot be supported by the evidence”. The ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides:

“(1) 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, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The nature of an appeal on that ground after a trial by judge alone was considered by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. The Court noted the provisions of s 133(1) of the Criminal Procedure Act 1986 (NSW), which provides that a judge who tries criminal proceedings without a jury, may make any finding that could have been made by a jury on the question of the guilt of the accused person and that any such finding has, for all purposes, the same effect as a verdict of a jury. The Court considered that the reference to the judge’s “finding” in that context was to be understood to refer to the ultimate finding of guilt or otherwise, as opposed to the findings of fact leading to the ultimate finding: at [6] per French CJ, Bell, Keane and Nettle JJ; per Gageler J at [80].
The Court held that the combined effect of the two sections is that a judge’s finding of guilt “is not to be disturbed [under s 6(1) of the Criminal Appeal Act] unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice”: plurality at [12]; and see Gageler J at [82]-[83].
In the case of an appeal from a jury verdict, the approach this Court should take to an appeal invoking the first limb of s 6(1) is well settled; the task is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency and its quality. It is not enough if a review of the evidence establishes that it was open to reach a different conclusion. Conversely, the question is not whether there was evidence on which a jury could convict: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] per Hayne J. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt that the Court can conclude there was no miscarriage of justice.
The decision in Filippou makes plain that those principles also govern an appeal invoking the first limb of s 6(1) from a finding of guilt after a trial by judge alone. In such a case, however, the task of the appellate court is complicated by the need to consider the judgment of the trial judge. In the case of a jury verdict, a court of criminal appeal does not have access to the reasons for the verdict. The court in that case is confined to an assessment of the evidence, the submissions of counsel and the directions of law given by the trial judge.
In the case of trial by judge alone, the judgment of the trial judge must include the principles of law applied by the judge and the findings of findings of fact on which the judge relied: s 133(2) of the Criminal Procedure Act.
The plurality in Filippou proceeded on the assumption that, assuming the trial judge has complied with that requirement, the appellate court in an appeal from the verdict of a judge should have regard to the judge’s reasons.
In a separate judgment, Gageler J specifically considered the place of the trial judge’s reasons in the determination of an appeal under s 6(1) of the Criminal Appeal Act. His Honour said at [83]:

“Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence. In some cases of an appeal against a conviction following a trial by judge alone, consideration of the first limb will require the Court of Criminal Appeal to review for itself the totality of the evidence so as to form its own assessment of whether or not it was open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty without any regard to the reasons for judgment of the trial judge given in compliance with s 133(2). In a case where the argument in the appeal against conviction is that there are particular reasons why it was not open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty, it may be open to the Court of Criminal Appeal to discharge its appellate function under the first limb by reviewing the evidence and forming its own independent assessment of that evidence to the extent necessary to engage with that argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal. But having adopted the intermediate findings of fact of the trial judge about which no complaint is made, and having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal in such a case will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge's advantage in seeing and hearing the evidence.”

The observations in the joint judgment at [12] and of Gageler J at [81]-[83] suggest that, to the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge’s intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge.
The applicant in the present appeal did not rely upon errors of law or fact in the reasoning of the trial judge as discrete appeal grounds. The sole ground of appeal was that the verdict is unreasonable or cannot be supported having regard to the evidence. However, the submissions in support of that ground ultimately rested on alleged inconsistencies and discrepancies in the complainant’s evidence and the existence of an alleged motive to lie. We took the view, in the circumstances, that in undertaking an independent assessment of the evidence (as we must), we should have regard to the way in which the trial judge dealt with those matters.
Our assessment of the evidence in the present case has left each member of the Court in doubt as to the applicant’s guilt. With great respect to the trial judge, and making full allowance for the advantage enjoyed by her Honour in hearing the witnesses, we have concluded that there were so many significant inconsistencies and anomalies in the evidence as to point unequivocally to the conclusion that the verdict was unreasonable, or cannot be supported, having regard to the evidence.
Our conclusion is reinforced by a sense of unease as to the course of the trial. While no specific error in the conduct of the trial is alleged on behalf of the applicant, there are aspects of the course of the trial which, in our respectful opinion, inform an assessment of the reasonableness of the verdict.
Each of those aspects of our deliberations is explained below.

Consideration of the evidence and the judge’s reasons

The trial judge gave herself the appropriate legal directions and no complaint is made in that regard. In addition to the evidence of the complainant, the Crown case relied upon evidence of complaint and alleged admissions. The alleged admissions were contained in recorded telephone conversations between the applicant and his mother, niece, daughter and ex-partner whilst on remand shortly after his arrest. Her Honour considered all of that evidence in her reasons.
The complainant had made a number of statements prior to giving her evidence at trial. The first version was given to Detective Senior Constable Scicluna when she attended the complainant’s home late on the night of 28 April 2013. She was taken to Westmead Hospital, where she gave an account to a forensic nurse, Danielle Birmingham. Ms Birmingham took contemporaneous notes as the complainant spoke. She gave another, brief account to Senior Constable Ball and Detective Senior Constable Gibson when they attended her home the next morning, 29 April 2013. Later that day, she participated in an electronically recorded interview with police. She participated in another electronically recorded interview with police on 4 June 2013.
There were significant inconsistencies in the complainant’s versions of events, as between the various statements that she made prior to giving evidence, as between those statements and the evidence that she gave in court, and within the account she gave in her evidence. Her Honour considered those inconsistencies but was not prepared to make findings that any particular inconsistency reflected adversely on the complainant’s credit.
Not only were there numerous inconsistencies in the accounts that the complainant had made at various times, a further difficulty with her evidence is that she was unable to remember which versions she had recounted to various people and thus was unable to explain her prior inconsistent statements. Again, her Honour made no adverse findings regarding the complainant’s almost complete inability to remember what she had told either police or the nurse. Rather, her Honour noted that, “She appeared genuine in her inability to recall earlier accounts and conversations”. Although, in so finding, her Honour was satisfied that the complainant was telling the truth about not being able to remember certain matters, her Honour did not go on to make any findings as to whether her poor recollection adversely affected her reliability as a witness and how this was relevant to the question of whether her Honour could be satisfied beyond reasonable doubt of the applicant’s guilt.
It is convenient to explain our doubt as to the applicant’s guilt (based on our own assessment of the evidence) by reference to the factual findings made by the learned trial judge, the evidence upon which her findings were based and our reasons for making either the same or different findings.

Did the applicant enter the complainant’s home uninvited that morning?

The complainant gave a number of inconsistent accounts as to how the applicant came to be in her home on the morning of the alleged sexual assault. She told the nurse that the applicant had entered her residence that morning at midday through the front door, which was unlocked. She told police who attended her home at 10:30pm on 28 April 2013 that, “My ex came over to my house today. He just let himself in”. In her second recorded interview with police, she stated that the applicant was present when she woke up, but in her evidence in court she could not remember saying that to police. In her evidence in chief, she stated that she had woken up “round lunch, just before lunch time” and that no-one was there when she woke up. She stated that the applicant and Blaise came over to her house sometime that morning together. The Crown conceded during the cross-examination of the complainant that she had told police in her second statement on 4 June 2013 that the applicant had been at her house all morning. The complainant did not recall saying that to police and maintained her evidence that she could not remember anyone being at her house when she woke up.
The complainant did recall the applicant cleaning her and putting her to bed the night before, after she had vomited. There was evidence that the complainant slept late because she had become sick, vomited and passed out the night before. The applicant had fallen asleep after putting her to bed. He awoke before her in the morning and prepared breakfast for her children. The weight of the evidence is that the applicant had stayed overnight. Despite this, the complainant conveyed the impression when first spoken to by police and the nurse that the applicant was an uninvited guest in her home that morning.
The trial judge made a finding, contrary to the evidence of the complainant, that “the weight of the evidence” was that the applicant stayed the night. Despite this, her Honour made no finding that this reflected adversely on the complainant’s credit in any way.
We are satisfied that this evidence impacts adversely on the complainant’s credit, or perhaps more accurately, the reliability of her evidence. The inconsistencies meant, at the very least, it was necessary for the trial judge, on a review of the evidence, to scrutinise her evidence with considerable care, to satisfy herself beyond reasonable doubt that the offences in question were committed. We do not think that the approach of the trial judge in her reasons, which we have set out below, gave that necessary degree of scrutiny to her evidence.

Evidence with respect count 2 (digital penetration)

The complainant gave differing accounts as to how count 2 was said to have been committed. Count 2 was the first in time of the three alleged offences. There were three aspects of the complainant’s account in which her evidence changed: how her pants were removed, how she came to roll over, and whether the applicant’s finger remained in her vagina as she rolled over.
At trial, the complainant gave evidence that, before the massage commenced, she took her top off “freely” and was not wearing a bra. She stated in cross-examination that she did not remember telling the police that it was the applicant who took her top off.
She also gave different versions as to how her pants came to be removed. She told the nurse that the applicant “slid” her pants off whereas she told police that same night that he “ripped” them off. At the trial, the complainant said in cross-examination that she did not take her pants off willingly, but that the applicant took them off “roughly”. She agreed that her pants needed to be lowered in order for the applicant to massage her lower back, but not to her ankles. She said that he didn’t “slide them down” and that she, “…struggled keeping those pants on because he was being so rough”. She said that he, “…ripped them down to my ankles to massage me”. She agreed that in her interview with police on 29 April 2013 she said nothing about any struggle to keep her pants on.
The evidence of Nurse Birmingham was that she took contemporaneous notes of what the complainant told her. Some of those notes were in quotation marks, recording the complainant’s words. Other parts of her notes were not in quotations marks, being a summary of what the complainant had said. The nurse recorded that he “slid” her tracksuit pants down in the summary part of her notes.
The finding of the trial judge was as follows:

“I take into account that the version given by Nurse Birmingham could constitute a prior inconsistent statement, but the point is of little weight as it could also be an inaccurate record of what she said and there is an earlier consistent statement made to the officer.”

Although it is to be accepted that the nurse may have inaccurately recorded what occurred, there is a significant difference between the words “ripped” and “slid”, such that an error in those terms seems unlikely. The complainant also changed her account of how she came to roll over from lying on her stomach to lying on her back during the massage. During cross-examination, the Crown Prosecutor conceded that the following question and answer were recorded in the complainant’s second interview with police on 4 June 2013: “So you have told him that you don’t want to have sex with him, you weren’t in the mood, but you rolled over and you said ‘yes’?” The complainant could not remember saying that to police. There was also evidence that the account that the complainant gave to the nurse at Westmead Hospital that night was that she had turned over after being asked to do so. Again, when this was put to the complainant she said that she could not remember.
In her evidence in court she stated for the first time that she was forced to roll over before describing it as a “joint” effort. The trial judge’s finding was as follows:

“In the first police interview the complainant said the digital penetration occurred while she was on her back. There was no suggestion of penetration while she was on her stomach. When questioned as to the rolling over, the complainant in evidence described it as ‘He rolled me over and it was a joint effort, not just myself.’ The aspect of rolling over does not carry great weight as it is not a term that definitively means ‘I did it alone’, as seems to have been submitted.”

There is a difference between being forced to roll over and rolling over voluntarily in the context of an alleged sexual assault. This aspect of the complainant’s account entails an inconsistency which, viewed in the context of her evidence overall, has contributed to our doubt regarding the applicant’s guilt.
The complainant also gave an account in court for the first time that the applicant’s finger remained in her vagina as he forced her to roll over. She had never said that before. The nurse’s note was that, “‘He then put his finger into my vagina.’ She told him, 'No. Stop.' He did stop. 'He asked me to roll over and he started massage [sic] me’”. The complainant had not mentioned to police that the digital penetration occurred both when she was on her stomach and also when she was on her back.
In her examination in chief, the complainant gave evidence that the applicant tried putting his finger in her “private part” whilst she was lying on her stomach and that he was being very rough and she couldn’t move away. She said that she grabbed hold of his hand and told him that she did not “want anything”. He then rolled her over onto her back. The complainant said that, “He still had his finger inside and he was being real rough.” She was asked “How did it feel to you when that happened?” She responded that, “He felt that I wanted it”. She was then asked:

“Q. You said that his finger was still in there when you rolled over. Can you tell us how that happened?
A. I don’t remember”

In cross-examination, the complainant stated that the applicant was massaging one side of her groin when she was on her stomach. She stated that, “He then started going to my walls in – in my vagina and then he stuck his finger in.” She agreed that his finger remained in her vagina while he rolled her over. When asked how it was that he rolled her over while his finger was still in her vagina, the complainant said, “Because he moved off the bed and he still kept his hand inside”. She gave evidence that he used his other hand to roll her over on the bed. She said that he left one leg on the bed and one leg on the floor, but did not remember on which side of the bed. She agreed that she was quite certain that the finger remained in her vagina the whole time that the applicant was turning her over.
The complainant said that she did not remember how long the massage lasted. She stated that it was a “moderately long massage”. She agreed that that meant more than 15 minutes, but was not able to say whether it was more than 20 minutes. She agreed that the “second part” (that is, after the digital penetration had occurred) was shorter than the first part, or about 10 minutes. In re-examination, the complainant said that the applicant started stimulating her breasts and trying to penetrate her with his penis about 10 minutes after rolling her onto her back. She stated that he was still “fingering” her in the meantime. On her account, after the unwanted act of digital penetration (or during; her evidence as to timing is unclear), she remained on the bed and continued to receive the massage from the applicant.
It was submitted by defence counsel at the trial that the description by the complainant of the applicant straddling her to massage her, then getting off the bed and forcing her somehow to turn over whilst at all times having his finger inside her vagina, was implausible. The trial judge did not agree. Her finding regarding the evidence on this issue was that:

“There was considerable cross-examination as to relative positions of the accused and the complainant and how she came to be rolled over. This was the foundation for submissions that the account was implausible. I did not find that as I listened to the complainant. My understanding was that the accused was massaging her groin whilst straddling her back, with his hand coming from her side and then while digitally penetrating her she was rolled on to her back. The manoeuvre would have been easier if he was not straddling her, which is what he claimed. I do not give much weight to this submission.”

We have paid close regard to the complainant’s evidence of how it is that the applicant is said to have been able to manoeuvre himself in the way described by her. The applicant, who was born in 1960, was 52 years old at the time of the massage. There was evidence from the applicant that he suffered from sore knees. We have had regard to the fact that the complainant provided this version of events for the first time in court. In our assessment, the account given by the complainant on this issue lacks cogency. It is a further matter that has contributed to the doubt the court experiences as to the applicant’s guilt.

Events immediately after the alleged assaults

The complainant’s evidence in chief was that, after the alleged offences, she pushed the applicant off her and he got “cranky” and left. She stated that she then went to pick up her daughter. She could not say when he left. On re-examination, her evidence was that she did not recall the applicant staying in the house after the massage. Despite this, she also agreed in cross-examination that she remembered kissing the applicant as she left to go and get her daughter from her sister’s place. She later changed her evidence and stated that she did not “remember that far back” when asked whether she remembered kissing the applicant goodbye. Although initially agreeing that she kissed him goodbye, she repeated that she did not remember getting kissed goodbye or kissing the applicant.
The complainant’s neighbour, Matthew McGovern, gave evidence that he was unloading some firewood at about 4pm or 5pm on 28 April 2013. As he was unloading the firewood, he saw the applicant at the complainant’s place. He gave evidence that he “sang out” for the applicant to give him a hand. The applicant started walking down, but turned around when the complainant called out to him. Mr McGovern said that the applicant went back, gave the complainant a kiss and then helped him to unload the firewood. When asked whether he saw them “having a kiss”, he replied “yes”.
The complainant stated that she did not recall her neighbour, “Matt” (Matthew McGovern) arriving home that day.
In his ERISP, the applicant told police that, once the complainant was ready to pick up her eldest daughter, they went outside, he kissed her goodbye and then the complainant, who was about to get in the car, came back around the car and kissed him goodbye and that the neighbour, Matt Keogh, saw that. In his evidence, the applicant said that the complainant opened the car door and then quickly closed it, ran around and gave him a kiss goodbye before walking back around and driving away.
The fact that the complainant gave inconsistent accounts of what happened after the alleged sexual assaults is a matter that is relevant to her credit. The farewell kiss in particular is consistent with the applicant’s version of the relationship being of an ongoing nature.
In her reasons, the trial judge dealt with the kiss by stating:

“’When the complainant and accused left her home they kissed in her driveway. The accused nominated Matt Keogh - his name is actually McGovern - as a witness to the kiss and he was called and confirmed seeing a kiss. The complainant did not have a clear recall of the kiss and I accept the Crown submission that it is really a peripheral detail. When pressed, in cross-examination, she did accept that they had kissed. The fact that the kiss was relied upon as inconsistent with the occurrence of the alleged offences given the pre-existing, and to a degree ongoing, relationship I do not place weight on this submission.”

Her Honour appeared to disregard the inconsistent accounts in relation to the kiss because its existence was explainable by reference to the continuing and ongoing relationship between the applicant and the complainant. This reasoning is difficult to understand, given that later in her Honour’s reasons she appeared to reject the suggestion of any ongoing relationship, stating that she placed “little weight on the relationship evidence from post June 2013, it confirms that a friendly and companionable relationship existed between the complainant and the accused…”. Nevertheless, we are satisfied that this evidence did in fact impact adversely on the complainant’s credit. It has contributed to the doubt experienced by this Court.

Not telling police that the applicant was at her home when they arrived

When the police arrived at the complainant’s home on the night of the alleged assaults, the applicant was present at the home, as was Blaise. The complainant did not tell police this.
Her first explanation in her evidence in chief for not telling police that the applicant was in her home was that “…they didn’t ask me”. She gave that answer twice again in cross-examination. The second exchange was as follows:

“Q. Do you remember before the break I asked you about the fact that you hadn’t told the police in the first interview about the fact that Ken was at your house when they arrived – do you remember I was asking you some questions about that?
A. Yes, because they didn’t ask me.
Q. The police asked you the same question, do you remember that – during the second interview they said, “Is there any reason why, when police arrived, you didn’t mention –
A. They didn’t ask me.
HER HONOUR: Just stop and listen. You are being asked about your second interview with the police – just listen to what you were asked by them, and what you said to them – just wait and listen.
WITNESS: I don’t remember what I said to the police back then though.
EVERS
Q. I’m just going to read to you from question 89, page 8, the police said, “Is there a reason why, when police arrived, you didn’t mention to the police that Ken was in the house when you were telling them of the sexual assault?” Your answer was, “I didn’t think of telling them; they didn’t ask”?
A. That’s right.”

It is to be noted that the evidence of Detective Scicluna was that, when she first arrived at the complainant’s home at 10:30pm that night (and the applicant was in the laundry) she saw Blaise at the house and was “a bit confused” at first. She stated, “I was, like, well, is this the accused person?” She went on to state, “I was told he wasn’t the accused person; he was someone else”. She agreed she was not told anything else about where the applicant was at that time. In this context, the complainant’s evidence that she was not asked about whether the applicant was present is not strictly correct, or at least gives an incomplete picture of events, as the subject of whether Blaise was the suspect was raised.
The complainant had every opportunity to tell police that the applicant was present at her home when police asked about Blaise, but she did not do so. There was no evidence that she held any fears about the applicant at that time. On the contrary, in response to a question in cross-examination as to whether she said anything to the applicant about not wanting him there that night, given that she had just reported him to the police, she said, “He was a friend then, and I did not report it – it was [RT] that reported it” (the reference to [RT] is explained below). When she was asked by the Crown Prosecutor in re-examination as to whether she could tell him not to come to her house, she replied, “No I couldn’t tell him that...because I had no one, I needed support, I needed friends”. She said that she did not recall whether she had invited the applicant to come to the house.
In re-examination, the following exchange occurred between the Crown Prosecutor and the complainant:

“Q. Can you remember the time when you were standing in the hallway speaking to the police?
Yes.
Q. Can you remember at that time speaking to them about what Ken had done to you that day?
A. Yes.
Q. How did you feel about speaking to the police about that at that time knowing that Ken was in the laundry area of the house when you were speaking to them?
A. Okay. I don’t – I was scared, but I was also worried – altercations would happen with other people. That’s why I didn’t say anything about him being there.”

Counsel for the applicant objected to the questioning on the basis that the reason for not disclosing to police that the applicant was present did not arise from cross-examination. Her Honour overruled the objection, permitted the questions and then went on in her reasons to accept the explanation given by the complainant in re-examination as follows:

“The fact that the complainant was making complaint to the police regarding a sexual assault by the accused at the time when he was present in her home and made no mention of the accused being there is explicable. The evidence the complainant gave was that ‘I was scared but I was also worried – altercations would happen with other people, that’s why I didn’t say anything about him being there.”

The complainant had been consistently unable to explain why she had not alerted police to the applicant’s presence that night. She had not given any evidence that she was scared of the applicant at that time. Her explanation to police the following day, in her evidence in chief and in her cross examination was simply that she was not asked. The Crown Prosecutor required leave to ask questions about how the complainant was feeling at that time as they did not arise out of cross-examination and the complainant had given evidence about the general issue in her evidence in chief that had remained unchanged in cross-examination: s 39 of the Evidence Act1995 (NSW).
The explanation given in re-examination was inadmissible without a grant of leave to the Crown Prosecutor. In any event, it was inconsistent both with previous explanations that the complainant had given and with other evidence that she had given. We have taken the unsatisfactory nature of this explanation into account as contributing to the doubt we experience about the applicant’s guilt.

Reason the applicant was at her home when police arrived that night

The complainant was cross-examined regarding the presence of the applicant at her home when the police arrived at 10:30pm. It is to be noted that police arrived because the complainant’s ex-husband had called them prior to any complaint of any sexual assault. That evidence is discussed further below. At no time did the complainant contact police. When she was asked by police in one of her interviews why the applicant was present at that time, she replied, “He was suppose [sic] to be helping put the antenna on my roof”. When this part of her police interview was put to her by counsel for the applicant the complainant stated, “I have a disability, I was a vulnerable person back then. I was – he was a friend”. Counsel repeated, “You told the police that he was there to help you put the antenna on your roof, didn’t you?” The complainant responded, “I don’t remember what I said but when you have friends and you are a single person, single mother, you ask for support and help when you don’t have it. Yes, I do have a disability, yes – ”.
The trial judge interceded to ask, “You are only being asked if it was true that Ken was in your house that night so he could put up the antenna, true or not true?” The complainant responded, “He was at my place, I don’t recall – he was there for some reason but I don’t recall what for.” Counsel and the complainant then had the following exchange:

“Q. It was about 10:30 at night that you let Ken and Blaze into your house, wasn’t it?
A. I don’t remember the time.
Q. It was not long before the police arrived, is that right?
A. I don’t know what time the police came and Ken came, they – Ken and Blaze was there before the police but like I don’t –
Q. When they arrived it was dark and late, wasn’t it?
A. It was dark and late, yes.
Q. So Ken wasn’t going to be putting an antenna up on your roof?
A. I don’t recall what I said but I –
Q. You can’t recall…because you made it up to the police?
A. I don’t make things up.
Q. You made that up to police, didn’t you, that he was supposed to be helping you put the antenna up on your roof?
A. He was helping me with the antenna.
Q. In the laundry?
A. He offered to put the antenna up on the roof for me when I moved there.”

The trial judge had regard to this explanation and described it in her reasons as “bizarre.” Despite this, her Honour made no finding that it adversely affected the complainant’s credit in any way. Rather, her Honour dealt with this “bizarre” evidence by simply noting that she did not have access to the electronic recording of the complainant’s interview with police, where this explanation was first provided by the complainant, and thus that it was “difficult to assess this evidence or to determine whether it should reflect or to what degree impact upon the credibility of the complainant”.
The trial judge did not have the electronic recording of the complainant’s interview because it was not tendered in evidence. What her Honour did have before her was the complainant’s cross-examination about this topic. She thus did have the opportunity to assess the complainant’s credibility. Her Honour again made no adverse finding in this regard. It cannot be a justification for failing to consider the applicant’s credibility or reliability on this issue that she did not have the electronic record of the interview when she had the transcript and had heard the complainant being cross-examined on this topic.

Failure to mention the presence of Sharon White

In none of her initial complaints to police, the nurse, or in her recorded statement on 29 April 2013 did the complainant make any mention of the fact that, during the massage, her neighbour and friend Sharon White came to visit her to see whether she was feeling all right. The police first learned that the massage had been interrupted by Ms White’s visiting the premises when the applicant told them during his ERISP on 29 April 2013. The complainant’s interview had already been electronically recorded that day and she had not mentioned it to police at that time. The applicant told police that, at the stage when he was massaging the complainant’s calves and her tracksuit pants were off, he heard the children at the front door and looked out and saw that Ms White was there. He told the complainant that she should go and see what Ms White wanted. The applicant stated that the complainant put on a “terry towelling house coat” and walked out and spoke to Sharon. She then returned, took her robe off and continued with the massage.
The complainant was subsequently interviewed again on 4 June 2013 and agreed that she had spoken to Ms White during the massage.
The complainant gave evidence that Ms White came to the house while the massage was taking place. She said that, “She [Ms White] came and knocked on the door and Ken told me that she was there and I told him to let her know that I wasn’t feeling well.” Ms White came to the door “while I [the complainant] was on my stomach” and “before” the act of digital penetration”. In cross-examination, she agreed that nobody answered the door to Ms White when she came to the door the first time. She came back “a bit less than half an hour” later. The children were speaking to her. She did not remember the applicant saying to her at that point, “You had better check what’s going on because she might want you for something”.
The complainant said that she did not remember going to the door to talk to Ms White. She did not know whether she was wearing a terry towelling dressing grown when she answered the door. She did not remember telling police that, “Ken [the applicant] answered the door once and I went out to her, yes, I put my clothes back on”. She later stated that she remembered talking to Ms White, but did not remember what she said to her and did not remember “when exactly”.
Ms White’s evidence was that she knew there had been a small “party” at the complainant’s home the night before because she had been invited and declined and also, being a neighbour, she had heard the noise they made that night. She said the complainant’s house had been very quiet that morning, so she had gone over to get a cigarette and check on the children because she was worried about them. The house was quiet and she thought that the complainant was asleep. The children came up to the window and were calling out to her. She returned to the house about half an hour later because of concern for the children. The complainant came out. Ms White could not recall what she was wearing. She said that the complainant looked “a bit seedy”. She gave evidence that the complainant said to her, “I’ve got a headache… I’m going to go lay down”. Ms White described the complainant as “chatty”.
The complainant, the applicant and Ms White gave similar accounts about this visit, but only the applicant was able to recall what the complainant was wearing. The complainant could not recall telling police that she had put her clothes back on. The applicant gave a description of what the complainant was wearing to police and gave the same evidence at trial. He was not challenged on it in cross-examination.
If the complainant was wearing a robe, rather than the clothes that she had been wearing before the massage, that is consistent with all of her clothes being removed by the time of Ms White’s visit. This means that, on the complainant’s own account, the act of digital penetration must have occurred already as the complainant gave evidence that she protested and struggled when the applicant pulled her pants off and the first sexual act occurred after that. This was not suggested to the complainant in cross-examination, but is another anomaly in the evidence that remains unexplained.

As to what she was wearing before the massage, the complainant told Senior Constable Scicluna when she attended her home at 10:30pm that night that she was wearing pink pants and a top. In her evidence, she stated that she wore blue tracksuit pants and a top. Nothing of any significance turns on this inconsistency.
Her Honour dealt with the evidence about Ms White speaking to the complainant during the massage by stating that the failure to refer to Ms White did not reflect badly on the complainant’s credibility. Her Honour accounted for this by stating that, “It may be more indicative of a poor memory, as claimed by the complainant.” Again, her Honour made no adverse finding of this further example of the fallibility of the complainant’s memory. Her Honour excused the complainant’s failure to recall Ms White’s presence when she spoke to police on the day of the alleged assault and again on the following day on the basis that at that time she had a poor memory of the event. Again, her Honour gave no consideration as to how this might affect her reliability as a witness.
The witness Ms White was an important witness. She was a neighbour of the complainant and friends with both the complainant and the applicant. She used to look after the complainant’s children and the complainant gave evidence that Ms White was going to be the godmother of one of her children. When the applicant was arrested, he sent Ms White a letter from custody that was tendered in the trial. Ms White gave this letter to police when she made her police statement in late May 2013. In it, the applicant denied the allegations and spoke fondly of the complainant.
When she gave her evidence, Ms White recounted some conversations that she had had with the complainant in the period after the alleged assaults. She stated that on the following day:

“She told me that she had Ken done for sexual assault, that’s what she said, and I said, what, what do you mean, and she said, well, he’s been charged, and I said, what for, and she said, he sexually assaulted me, and I said, what, and then a week later she said, I don’t think he did, and I was like, you can’t change your mind like that, you, you know, so yes, we had a conversation about it. She was confused, she wasn’t sure herself what was going on.”

Ms White gave evidence that the complainant raised it again about a week later. Ms White’s evidence was that the complainant said, “I’m not sure if anything happened.” A couple of months later, the complainant said, “I’m not sure if I’ve done the right thing … I want to take it all back”. Ms White gave this evidence in cross-examination.
During re-examination by the Crown Prosecutor, Ms White stated that the complainant had said the following:

“She just said that – she didn’t want – she wasn’t in the mood for it and she didn’t want to have sex with him, and he was – wanted to have sex with her, and that he was trying to touch her, so – and she didn’t want to do it or something.”

The Crown was then granted leave under s 38 of the Evidence Act to ask leading questions of Ms White in re-examination. Ms White told the Crown Prosecutor that she mentioned the complainant’s uncertainty to Detective Senior Constable Ball in a conversation after she had given her statement. She said she had told Detective Senior Constable Ball that, “She’s not sure, anyway, anymore”, about the complainant. Detective Senior Constable Ball gave evidence denying that Ms White ever told him about any conversations with the complainant in which she expressed doubt about the events on 29 April. He also denied that he and Ms White had spoken about “any court stuff” whilst at court .He could not remember Ms White making general comments about her views after she had made her statement but agreed that, once the statement was finished, she was “fairly chatty”. The officer agreed that he was speaking to the witnesses outside court and chatted to Ms White outside court for some time.
Her Honour made the following finding in this regard:

“I prefer the evidence of the officer-in charge Detective Ball, who appears to have been very professional and thorough in his investigation and in evidence, that he was never told of such a conversation. As a result, I do not accept the evidence of Sharon White regarding the disputed conversation with [the complainant].”

Although her Honour rejected Ms White’s evidence on this issue, she accepted her evidence extracted above at [84] as being evidence of complaint. The trial judge did not provide any explanation as to why she separated out the part of Ms White’s evidence that could be considered evidence of complaint from the evidence in which she described the complainant’s expressions of doubt as to whether the offence had in fact occurred. Although it was certainly open to her Honour to find that Ms White had not said anything to police regarding the complainant’s misgivings, that does not mean that Ms White’s evidence as to what the complainant had told her necessarily had to be rejected as well.
Even making due allowance for the advantage of the trial judge in seeing and hearing this evidence, it is difficult to understand why the evidence of Ms White regarding her conversations with the complainant should be rejected. Ms White had no motive to lie and was a friend of the complainant.

Evidence with respect to ongoing relationship

The complainant gave evidence that, although the relationship with the applicant finished in April 2013, not long before the alleged assaults occurred, they remained close and continued to have sexual intercourse, although not every day. After the relationship ended and the applicant left the house she continued to send him text messages telling him she loved him, that she was going to bed soon, and asking him when he could come to her house. The applicant told police in his ERISP that he and the complainant were “still friends and see each other.” At trial, he described their relationship at the time of the alleged offences as being “everything that a relationship is supposed to be.” He also gave evidence that the sexual part of their relationship continued and they had sex “nearly every day”.
The trial judge made the following finding about the applicant’s evidence on this issue:

“The accused’s attempt to paint their relationship as effectively unchanged was not credible and reflects poorly on his credibility as to the nature of their relationship.”

In making this finding, her Honour relied in part upon the evidence of the applicant’s daughter Nicole Bell that the applicant had told her that the relationship had broken up possibly a month before his arrest. Her Honour did not refer to the other evidence of Ms Bell that, even though she knew the relationship ended about a month or more before he was arrested for these offences, it did not appear to her to have changed. Ms Bell would see them together, they would walk past her house holding hands and the applicant continued to visit the complainant regularly and would still spend most nights of the week at the complainant’s place. She said that, “to the unforeseen eye it would have still seemed like they were in a relationship because he was still spending time there, mowing her grass, doing things for her”.
Not only did her Honour fail to have regard to all of Ms Bell’s evidence on this subject, she also failed to refer to the evidence of Ms White that, right up to the day of the alleged offences, she would see the applicant stay at the complainant’s place a lot. He was there “all the time”. She would see him do things like sweep the floor, do the dishes and make coffee. Ms White also gave evidence that the applicant told her that he loved the complainant and that the complainant told her that she was in love with him too. She also gave evidence that the applicant was going to ask the complainant to marry him (Her Honour made a reference to this as extracted below at [96]).
There was uncontested evidence before the court that after the applicant was released on bail for these offences he resided with the complainant. The complainant agreed that, following his release from custody, she and the applicant continued to see each other. She would drive him to the police station to comply with his bail reporting obligations and he would come and help her around the house. He gave her money to play on the poker machines and she won enough money for them to buy a car together.
As stated below at [169]-[174], counsel at trial was prevented from cross-examining the complainant about this “close relationship” after he was released from custody because the trial judge was of the view that it contravened s 293 of the Criminal Procedure Act. The close relationship between the applicant and the complainant after he was released from custody was relevant to the complainant’s credibility and as to whether the relationship was ongoing. The trial judge repeatedly prevented defence counsel at trial from exploring this issue and then made this finding in her reasons:

“I have ultimately placed little weight on the relationship evidence from post June 2013, it confirms that a friendly and companionable relationship existed between the complainant and the accused against a background that they had shared an intimate relationship previously for about 6 months and that she had loved the accused, as she told Sharon White. Counsel for the accused Ms Evers submits that the contact of such nature would be inconsistent with the truthfulness of the allegations. The nature of the alleged offences are matters to consider: they were of short duration, there were no threats made, no brutality or violence beyond persisting with a sexual act when a lack of consent was indicated and the accused chose to desist at the complainant’s request.
I find the evidence of the ongoing relationship equivocal at best. It is also inconsistent with the conduct of an intelligent man who has been wrongly accused of heinous conduct and spent time in custody because of false allegations.”

It is illustrative of the manner in which her Honour approached her consideration of the evidence in this matter to have regard to this passage of the reasons. When considering whether any adverse credit finding could be made against the complainant for resuming a close friendship with the applicant after this alleged sexual assault, her Honour minimised the seriousness of the allegations. Her Honour appears to express a view that there was nothing of significance about the fact that the complainant chose to continue her close friendship with the applicant because the allegation was so minor. On the other hand, when referring to the significance of the ongoing close relationship to the defence case, the allegation is described as “heinous” conduct.
Her Honour then went on in her reasons to note the lack of any evidence of the extent of the applicant’s brain damage in rejecting a submission from trial counsel that it was because of that brain damage that it was not possible to “get through to [the applicant]” that he could not see the complainant. Her Honour noted the “apparent distress” exhibited by the applicant when he gave evidence at the trial of how he loved the complainant, but did not find that the relationship evidence post-June 2013 was “of any real assistance”. The issue of her Honour’s treatment of the applicant’s brain injury is discussed further below at [150]-[159].
There was no evidence before her Honour that would permit a finding that, when the applicant went back to live with the complainant after he was released from custody, he was an “intelligent” man who would not have done so if the allegations made against him were false. Although it is to be accepted that, by the time of the trial nearly three years later, he was able to give evidence, the procedural history before her Honour was that he had been found unfit to stand trial during that time after receiving a significant brain injury. This is discussed further below.
We are not satisfied that any adverse inference should be drawn from the fact that the applicant returned to reside with the complainant when he was released from custody.

Evidence with respect to licking of “private part”

The applicant gave evidence at trial for the first time that there had been a consensual act of cunnilingus initiated by the complainant during the massage. There was contemporaneous support for this having occurred because the nurse at Westmead Hospital that night made a note that the complainant told her “he then started licking my private part.” The complainant did not tell police about this act and she was not asked about it in her evidence in chief. After the applicant gave evidence of it at trial, the complainant was briefly re-called to give evidence about this aspect. She stated a number of times that she could not remember what she told the nurse. She repeated her evidence that the applicant had kissed her breasts, but denied any licking of her vagina. She stated that when she used the expression “private part” she meant her breasts.
The complainant was not at that stage cross-examined about the fact that, when she gave her evidence in chief, she described her vagina as her “private part”, rather than her breasts. When she described the act of alleged digital penetration (count 2) in her evidence in chief, she stated he “tried putting his finger in my private part”. She was asked by the Crown Prosecutor what part of the body she was referring to when she said “private part”. She responded “my vagina”. At no stage of her evidence until she was recalled did the complainant ever refer to her breasts as being her “private part”.
Further, the trial judge was informed from the bar table that in a conference with a solicitor from the Office of the Director of Public Prosecutions in July 2013 the complainant said she could not remember whether the applicant “licked her private parts but he may have tried”. Despite this, she could remember that he kissed her breasts. The complainant clearly recalled that the applicant kissed her breasts, but was not able to remember whether he licked her “private part” (as she had told the nurse) in this conference, which occurred close to the alleged offences.
Despite the evidence that the complainant was clearly able to distinguish between her “private part” and her breasts and had referred to her vagina as her “private part” in her evidence in chief, and also despite the fact that there was evidence that the complainant could not remember what she said to the nurse in any event, the trial judge accepted the complainant’s explanation that when she said “private part” to the nurse she meant breasts. Her Honour’s reasons for so finding were as follows:

“I make no adverse finding with respect to the credibility of the complainant in this regard as there remains a possibility that there may have been a miscommunication with the nurse or that the complainant did use the term to refer to her breasts as she did otherwise use the term “vagina” with the nurse. Her response was, as submitted by the Crown, spontaneous and a basis for refuting criticism in this regard.”

Having found that the complainant meant “breasts” when she used the expression “private part” to the nurse, her Honour then went on to make a finding adverse to the applicant’s credit that he raised the cunnilingus for the first time at trial. Her Honour simply stated of this evidence:

“If she had actively sought to have such sexual interaction it seems implausible that he would not have included that in his detailed account of the events to the police the following day.”

The weight of the evidence was that the complainant was referring to her vagina when she referred to her “private part”. It is difficult to see how the applicant’s evidence on that issue could fairly be the basis for an adverse credit finding against him. It is consistent with what the complainant first told the nurse, even if the complainant could not recall that when she gave evidence at the trial.

Motive to lie

A motive to fabricate the allegations was squarely raised by the applicant and was rejected by the trial judge. The motive was that the complainant was worried that if her ex-husband RT knew that she was still seeing the applicant and having him stay at her house her children would be taken from her by “DoCS” (now the Department of Family and Community Services). Evidence going to this subject is as follows.
The complainant agreed in her evidence that RT was angry that she was with the applicant. She also agreed that he used to say that if she did not break up with Ken he would arrange to have the children taken off her. The complainant also agreed that RT found out about her living with the applicant and that she was scared of losing her children because of living with the applicant. The complainant agreed that the DoCS became involved because of things that RT was saying to them.
The evidence of the neighbour Ms White was also that the complainant was frightened of RT. She stated that when RT was living with the complainant the police were called nearly every day for domestic violence incidents. Ms White also gave evidence that RT told the complainant that she had to take “the action”. Ms White gave evidence that she heard RT arguing with her about this as follows:

“I think I was there once when he was on the phone screaming at her telling her that she had to do it, and I was like, you don’t have to do anything if it’s not right. I said you don’t have to do anything at all. If he didn’t do anything, then you shouldn’t be doing this, but anyway, I’m not sure what’s actually happened, because she’s moved away and everything. I just said, if he didn’t do it to you, then you shouldn’t be listening to other people – what’s the word – coercing you into doing something. Because they were in a relationship together, they were boyfriend and girlfriend.”

RT gave evidence at trial and denied this. His evidence was that he had not heard from the complainant for a while until a few days before the alleged sexual assaults. He said the complainant wanted to move on with her life and did not want him around anymore. He said that they had started talking again just prior to the alleged offences. He denied ever threatening to report the complainant to DoCS and denied the complainant was scared of him.
There was evidence from the complainant that RT had in fact already complained to DoCS because he was not happy about “…the friends that I was making”. The complainant continued, “…but he couldn’t stop me from having the friends that I did.” She agreed that he tried to stop her by making allegations to DoCS.
A significant aspect of RT’s evidence is that he and the complainant were sending text messages to each other leading up to and after the alleged offences. A record of the text messages to and from RT’s phone in the days before the incident was tendered at trial. They are significant and cast doubt on the complainant’s credibility. They should be read in the context of the complainant’s evidence referred to above at [108]. They show the following.
At 4:03am on 27 April 2013, the complainant sent RT a text stating, “R u awake he called me twice and has woken me up because he wonted 2 come up I said no.” No questions were asked about this text at trial. It is not clear to whom the complainant is referring. The complainant then telephoned RT at 9:26am on 27 April 2013 and the call went to voicemail. She called again at 4:24pm that day and the call again went to voicemail. The next contact is at 11:02pm that night (at which time the applicant and Blaise were at the complainant’s house drinking) when the complainant sent RT a text that read, “He is here and called u gay wont tell me much.” No questions were asked of the complainant about this text either. This text was followed quickly by a text from RT one minute later stating, “Why u let him in r u ok”. The complainant sent a text message back at 11:03:36pm, “he made his way in”. The complainant was not asked about this text at trial either. The unchallenged evidence is that she was at her home with the applicant and Blaise at that time. Both men were invited guests. If she is referring to the applicant, an inference is available that she was lying to her ex-husband about how and why the applicant was a guest in her home.

The trial judge did not accept the applicant was merely detailing the allegations against him in the first gaol call. Her finding in relation to this call was as follows:

“Having listened to the call and taking into account some of what he said in the subsequent call I accept that in this conversation the accused has admitted intimately touching the complainant and not stopping when she said, ‘Stop’.”

The trial judge found that the words, “And fucking when I told mum about what happened she laughed,” in the second gaol call were consistent with the applicant’s having told his mother, in the first call, about what had actually happened. Despite this, her Honour did not find that the description of the offence as “not stopping at a stop sign” constituted an admission in the second call.
As for the third gaol call, her Honour stated:

“Having listened to the call taking into account what was said and taking into account the tone and intonation I find that this constitutes an admission that the accused did digitally penetrate the complainant and that he did so knowing that she was not consenting. I do not accept the evidence of the accused that he was simply detailing the allegation made against him.”

Her Honour found that the fourth call also contained admissions. She rejected the applicant’s contention that he was simply detailing the allegations made against him.
Each of the members of this Court has listened to these four recordings. In relation to the first, second and fourth calls we are satisfied that the applicant was clearly describing what he had been charged with, rather than making any admissions of guilt. The third call is less clear. The passage in the third call italicised above is capable of being taken as an admission that there was an act of digital penetration (but not necessarily a non-consensual act). The applicant tells his ex-partner that “what she said is” that “she” allowed him to give her a nude massage and then “she said ‘Oh put a finger in,’ and … I didn’t stop”. We are satisfied that at this point he is recounting what the complainant has told police. The next exchange is less clear. In context, the question asked of the applicant as to whether he was “fingering her” could be referable to either the allegation or the actual event, thus the response from the applicant, “Yeah,” could also be referable to either the allegation or the event.
The next portion of that call includes a repeat of the shorthand way of describing the charge as “not stopping at a stop sign” that the applicant used in the previous calls.
We are unable to be satisfied that the third call is evidence of an admission of sexual intercourse without consent. In so finding, we have relied upon the following matters: we are already satisfied that in all of the other calls the applicant is discussing the charges rather than the events; the second and third calls were made on the same day and deal with the same subject matter; and the applicant used the same expression of “not stopping at a stop sign” to explain the charges in the other call that he made that day. In addition, we have had regard to the cogency of the explanation given by the applicant summarised above.

Intellectual difficulties of both complainant and applicant

On occasions during her evidence when the complainant was unable to explain an inconsistency in her evidence, she stated she was a “vulnerable person” because she had a learning difficulty and had been through trauma. There was no evidence before her Honour about any trauma the complainant suffered, whether such trauma was physical or psychological, or why that would affect her memory.
With respect to the complainant’s inability to recall certain events and conversations (including the act of digital penetration itself), her Honour stated:

“She appeared genuine in her inability to recall earlier accounts and conversations. The complainant gave evidence of having a poor memory generally and related this to a history of trauma as both a child and as an adult.”

Her Honour also referred to the following evidence given by the complainant in re-examination about her intellectual disability:

“Q. [Name], you said a number of times in answers that you gave in cross-examination you mentioned a disability?
A. Yes.
Q. What is your disability [name]?
A. I have a mild intellectual disability, I – as growing up I was in an IM class.
Q. What sort of class, sorry?
A. An IM class. I was in the middle of mainstream and IM class. Learning – difficulties. As I have asked you some of the questions that you have asked I haven’t understood because of the way you have worded it. Intellectually I’m behind the age I am. Developmental as a child wasn’t reached properly. With having the intellectual -

Counsel for the applicant objected to the complainant’s answer as self-serving and submitted that it did not arise out of her cross-examination. The trial judge did not rule on the admissibility of that evidence. There was no other evidence before her Honour as to the meaning of “IM class”, nor any evidence about the extent of the complainant’s intellectual disability or the effect that it might have on her capacity to give evidence and recollect events. The trial judge then relied upon the evidence given by the complainant in her reasons.

“I note the complainant mentioned a number of times that she has a learning difficulty. At school she was in the IM class. This is a stream for students with a mild intellectual disability. The accused mentioned in his electronic interview that he had been told by the complainant that she had delayed learning but it was not something he ever noticed.”

Her Honour appears to have relied upon this evidence to make allowances for the complainant’s inability to remember certain details. Her Honour did not treat the applicant’s disability in the same way.
As stated above, there was evidence that the applicant had received a significant brain injury a few weeks after the alleged offences. In fact, the reason that the trial was by judge alone, rather than by jury, was because of the applicant’s significant brain injury and the problems that it would cause. The Crown consented to the trial being by judge alone. The evidence as to the effect of the applicant’s brain injury came from the applicant and his daughter. It was not disputed by the Crown. On at least two occasions, defence counsel indicated to the trial judge that she had expert evidence that she could tender about this, but her Honour did not indicate that she required that evidence. That is not surprising in circumstances where the Crown did not dispute the evidence of the applicant and his daughter.
At [96] we have set out her Honour’s finding that in the period after the applicant was released from custody with a significant injury, and moved back in with the complainant, he was an intelligent man whose behaviour was at odds with a person who had been wrongly accused of a “heinous” offence. In making that finding her Honour stated that:

“Counsel also sought to rely upon the submission that the accused had severe brain damage and that it was impossible to get through to him that he could not go to see the complainant. There was no evidence as to the extent of the accused’s brain damage and this is no basis for finding that he was incapable of understanding that he was not supposed to see the complainant.”
[emphasis added]

Towards the end of her reasons, her Honour stated that:

“There has been evidence before me that on about 16 June 2013 the accused suffered a major injury in gaol. He had a fractured eye socket, a brain injury and was in a coma for three to four days. The evidence is consistent with the accused now having issues with his short term memory and as previously stated there was no expert evidence and no medical evidence tendered but no issue was taken with this approach by the Crown Prosecutor.
In this trial I have benefitted from viewing the electronically recorded interview taken with the accused prior to suffering the injury and seeing the accused give evidence in the trial. It was readily apparent that the accused struggled to give evidence in the question and answer form. When he was interrupted, he would have difficulty resuming his account, to such an extent that I suggested that his evidence in chief be given in narrative form.
The accused is clearly an intelligent man with a good recollection of the events in question as demonstrated when giving evidence. At one point in his cross-examination I formed the view that his ability to respond to the questioning was impaired due to his issue with recall, particularly where he believed that the Crown may have been putting to him things that he had said previously, as opposed to the complainant’s version. I have drawn no adverse inference to the credibility of the accused as a result of such exchanges. This is a case where it has been necessary to exercise greater caution than would be usual in evaluating the credibility of the evidence of the accused.”

Her Honour also found that there was no evidence to support the submission of counsel for the applicant that the evidence of the applicant was rendered more reliable by reason of his brain injury.
There seems to be little justification for the disparate treatment of the cognitive difficulties of the complainant and the applicant. The trial judge relied on the absence of expert evidence as to the extent of what was an admitted brain injury in the case of the applicant. This is hardly reasonable in circumstances when the prosecution did not require it to be formally proved. More importantly, the case to a large extent was based on the complainant’s credibility or reliability. Whilst she may have had some learning difficulties which impacted on her evidence, the matters which we have outlined above make it difficult to accept her evidence beyond reasonable doubt on the critical questions in the trial. In particular it is difficult to accept her evidence as to whether any sexual intercourse occurred (a necessary element for Counts 1 and 2), whether such intercourse that did occur was with consent and whether the applicant believed the complainant was not consenting, was reckless as to whether such consent had been given or otherwise.

Consideration of the course of the trial

As already noted, no specific error in the conduct of the trial is alleged on behalf of the applicant. However, in undertaking the essential task of making an independent assessment of the evidence, based as it must be on a review of the whole of the record of the trial, this Court must inevitably have regard to the course of the trial. An independent assessment of the evidence cannot sensibly be divorced from a consideration of the way in which questioning proceeded, or was prevented from proceeding, or what might otherwise be termed the dynamics of the trial. A combination of features of the course of the applicant’s trial has reinforced our conclusion that the verdict was unreasonable having regard to the evidence.
First, the stated basis for the consent application for a trial by judge alone was that the applicant had been “very savagely beaten and suffered extensive brain damage”, that he had initially been assessed as being unfit for trial, that his condition had improved but that he was still “severely compromised in terms of his memory” and that he had “substantial difficulties in absorbing and digesting what is being said” such that additional time and effort was required to obtain instructions. None of that was disputed by the Crown. However when, at the very outset of the trial, counsel for the applicant flagged the need to have some time with the applicant after the complainant had finished her evidence-in-chief, she was personally criticised by the judge for not taking a proof of evidence from her client as part of her preparation of the matter. That was notwithstanding counsel noting that the complainant had participated in two recorded interviews, that there were substantial differences between those accounts (which there are) and that the Crown had informed her that there was going to be some difference between what had been said in the past and what would be said in chief in the trial. It cannot be determined whether the judge’s remarks in fact had any impact on the course of the trial but they were calculated to discourage counsel from asking for time to obtain proper instructions from a significantly impaired client.
Next, after the Crown opening, counsel for the applicant sought to open her case, as allowed under s 159 of the Criminal Procedure Act. The right of an accused person under that section is limited to an address on “the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute” and “the matters to be raised by the accused person”. During an unexceptionable attempt to do just that, giving an account of the applicant’s case in response to the complainant’s account as given to police in her two interviews, counsel was interrupted by the judge, who reminded her of the constraint imposed by the section and commented that she seemed to be giving “some sort of factual thing”. A factual account of the matters in dispute was within the scope of the section.
On two occasions, the judge stopped the barristers from providing important information to the court as to what was or was not within the brief of evidence served by the Crown, characterising such information as “evidence from the bar table”. The first such exchange occurred during the cross-examination of the complainant who, on a number of occasions, volunteered that she had been drugged. Counsel for the applicant tried to inform the judge that there was no suggestion in the Crown brief that the applicant had drugged the complainant or that she had been drugged. The judge correctly and fairly observed that, in the absence of evidence that it was the applicant who drugged the complainant, she would not draw any such inference. However, her Honour continued “but if the witness believes she was (a) drugged or (b) under the influence of drugs at the time it is relevant to how she was feeling or how she may have been appearing to your client”.
It was no part of the Crown case that, at the time of the events giving rise to the charges against the applicant (around midday on the Sunday), the complainant was substantially intoxicated by alcohol or any drug. In fairness to the applicant, counsel should have been permitted to make that clear. The proposition she sought to make could not have been disputed by the Crown. It was not a question of counsel giving evidence from the bar table; it was appropriate for the parties to inform the Court as to what was and was not in issue.
The second such exchange, which occurred later in the trial, was even more troubling. It occurred during the evidence of the accused. He gave evidence that, after he had massaged the complainant, he kissed her and that she then pushed his head down. He said: “she wanted – like, made me go down on her”. The complainant had not given evidence of any such activity.
At the next adjournment, at the request of counsel for the applicant, the Crown sought to address the judge on that issue. He informed her Honour that it had been “a joint forensic decision at the commencement of the trial” not to adduce evidence of the fact that the complainant had told Nurse Birmingham about an act of cunnilingus. The Crown then attempted to explain the reason there was no count of cunnilingus on the indictment. The judge interrupted him, asking whether he should be stating from the bar table the content of the conference with the complainant.
The reason counsel for the applicant had raised the issue with the Crown during the adjournment, as she later informed the judge, was that, coming for the first time from the applicant in his evidence-in-chief, his account of an act of cunnilingus sounded like recent invention on his part. It is clear from the transcript that the Crown and counsel for the applicant shared the view that it would be unfair in the circumstances if her Honour drew any such conclusion. The true position was that the complainant had also spoken of such an act on the very night of her complaint and, so it would seem, did not maintain that it was a non-consensual act (or else did not come up to proof to support such an allegation). However, the judge stopped both counsel from informing her of those matters, insisting that they could not give evidence from the bar table. In the course of doing so, her Honour again personally criticised counsel for the applicant, accusing her of making inappropriate comments.
In our respectful opinion, the judge ought to have allowed the Crown to state the joint position he had discussed with counsel for the applicant during the luncheon adjournment. As explained above, her Honour ultimately drew an adverse inference against the applicant on the very basis apprehended by his counsel.
Returning to our consideration of the cross-examination of the complainant, counsel for the applicant went to the topic of the resumption of the relationship between the complainant and the applicant after he was released on bail for the alleged offences against the complainant. There was no objection to that evidence by the Crown but the judge stopped it. The relevant exchange is set out below:

“Q:   You and Ken remained in close contact for a long time after this allegation didn’t you?
A:   No, Ken was in gaol for a while.
Q:   Yes, and then he came out of gaol and he moved back in with you for a while?
HER HONOUR: I disallow that question.”

The judge also stopped the next question, mid-sentence, and asked that the closed-circuit television connection with the complainant be disconnected. Her Honour then chastised counsel for not adhering to the terms of s 293 of the Criminal Procedure Act. Under that section, evidence is inadmissible in a trial for sexual offences if it discloses or implies that a complainant has or may have taken part or not taken part in any sexual activity. The section provides for exceptions to that rule.
Counsel pointed out that she had not asked about any sexual relationship. The judge responded that, by suggesting “close contact” and that the applicant “moved back in” with the complainant, counsel was being “suggestive”. Counsel responded by repeating that she had not intended to go into the sexual relationship but, in light of the judge’s concern, made an application under s 293 to allow the questions. After an exchange as to what was permissible under the section, the judge reiterated her view that anything implying or inferring sexual activity required leave. The debate concluded with the following exchange:

“COUNSEL   Can I just clarify one thing, Your Honour. If I am to suggest that there is a close friendship where he stays at her house, where he – without raising the sex that he maintained the property and so on, would that in your Honour’s [view] be a breach?
HER HONOUR:   Gardening is not the same as sex, Ms Evers, but you chose to ask questions about close contact and moving back in with her.
COUNSEL:   I wasn’t proposing to ask her about whether they had sex in that period, what I proposed to ask her – and it is in response to her saying that she was scared of him and that he was terrible - -
HER HONOUR:   Ms Evers, perhaps if you think about your questions and formulate them and we will deal with it.”

After a short adjournment, the cross-examination resumed. The judge told counsel at that point that she could not ask questions as to whether the complainant and the applicant had a “close friendship”, evidently taking the view that close friendship necessarily suggests sexual activity. Later, her Honour said:

“I’m not allowing anything on ‘kissing’. I’m not allowing anything on ‘sex’. I’m not allowing anything on ‘close friendship’. You can ask about his presence at her home; whether they were alone at the home, and matters of that nature, and if there is a need to revisit it at some stage we will.”

Two concerns arise from that exchange. First, in the absence of any objection by the Crown, the judge stopped the cross-examination on the premise (which may be doubted) that the conduct counsel wished to explore amounted to “sexual activity” within the meaning of s 293. The conduct counsel was seeking to explore was remaining in “close contact”, moving back in together, maintaining a “close friendship”, kissing, holding hands and going out together. Those were matters as to which counsel said she had witnesses to support the applicant’s version of events. Evidence of such conduct would have been relevant to an assessment of the complainant’s credit and, with the possible exception of kissing, did not attract the need to consider s 293.
Secondly, the principal reason the judge appears to have rejected the applicant’s entitlement to explore the complainant’s conduct after the alleged offences was that such conduct was not referred to in the written s 293 application provided in advance of the trial. The exchange referred to above suggests that was because counsel did not anticipate her Honour would take such a broad view as to what amounts to sexual activity. In any event, it is difficult to understand how that could be a sufficient basis for rejecting the evidence out of hand.
Next, during the evidence of the neighbour, Sharon White, the Crown made an application under s 38 of the Evidence Act 1995 (NSW) for leave to question the witness as though she were being cross-examined. The basis for the application may be doubted but it is not necessary to determine that issue. The point for present purposes is that s 38(4) contemplates that, where the party who called the witness makes such an application, another party who has an entitlement to cross-examine the witness should ordinarily be allowed to exercise that right after cross-examination by the party who called the witness.
The position in the present case was complicated by the fact that the Crown’s application to cross-examine his own witness was made during re-examination. In the circumstances, the Crown submitted that, after he had cross-examined the witness, counsel for the applicant should be confined to re-examination (rather than further cross-examination). He submitted that counsel for the applicant should be restrained under s 42 of the Evidence Act from asking leading questions of the witness.
The judge imposed that restraint. In the further questioning that followed, in the absence of any objection by the Crown, her Honour interrupted counsel for the applicant, commenting that she had asked what sounded like a leading question.
The evidence of Sharon White was important to the applicant. As explained above, she had given evidence of a conversation with the complainant broadly to the effect that she (the complainant) was no longer sure about the events on the strength of which the applicant had been charged. Ms White believed she had repeated those comments to police; the relevant police officer did not recall her doing so. Regardless of the content of any exchanges between Ms White and the police officer, the suggestion that the complainant had at one point recanted from the version of her allegations against the applicant was powerful evidence in his favour. The transcript creates the impression that the judge was determined to contain the exploration of that issue in a manner that, in our assessment, was unfair to the accused.
The matters we have referred to in this section taken cumulatively would, if raised as separate grounds of appeal, inevitably have led to a new trial as what occurred amounted to a substantial miscarriage of justice. Of themselves, they may not have led to an acquittal. However, the doubt we have experienced as to the verdict is highlighted by the fact this doubt exists in circumstances where the trial was, in many respects, conducted on a basis unfavourable to the applicant. Put another way, having regard to the manner in which the trial was conducted by the trial judge, we feel more comfortable in discounting the advantage she would have had from seeing and hearing the witnesses and departing from her conclusion as the primary trier of fact.

Conclusion

We have considered both the evidence before the trial judge and her reasons, consistent with the approach set out in Filippou supra (see [20]-[27] above). For the reasons we have given, we are left with a real doubt that the applicant committed the offence and that it was a doubt which should have been shared by the trial judge. A consideration of the reasons of the trial judge not only does not dispel that doubt, but rather further fortifies it.
For these reasons, we entered the verdicts of acquittal on 29 May 2017.
The following formal orders should be made:

Grant the applicant leave to appeal.

Appeal allowed.

Quash the convictions of the applicant.

Enter verdicts of acquittal.

**********

Decision last updated: 28 August 2017

Medium Neutral Citation:	Bell v Regina [2017] NSWCCA 207
Hearing dates:	26 & 29 May 2017
Date of orders:	29 May 2017
Decision date:	28 August 2017
Before:	Bathurst CJ McCallum J N Adams J
Decision:	1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. Quash the convictions of the applicant. 4. Enter verdicts of acquittal.
Catchwords:	CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence – whether certain utterances could constitute admissions pursuant to s 81 of the Evidence Act 1995 (NSW) – consideration of the course of trial
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I, 61L, 344A(1) Criminal Appeal Act 1912 s 6(1) Criminal Procedure Act 1986 (NSW) ss 133(1), 159, 293 Evidence Act 1995 (NSW) ss 38, 39, 42, 81(1)
Cases Cited:	Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Category:	Principal judgment
Parties:	Kenneth Bell (Applicant) Regina (Respondent)
Representation:	Counsel: P Coady (Applicant) N Williams (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/132092
Publication restriction:	Statutory non-publication order re identity of complainant
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 3 June 2016 Before: Herbert DCJ File Number(s): 2013/132092