Biggers v The Queen

[2020] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Biggers v R [2020] NSWCCA 22
Hearing dates:	7 February 2020
Decision date:	13 March 2020
Before:	McCallum JA at: [1] Adamson J at: [178] Beech-Jones J at: [183]
Decision:	(1)   Extend the time within which the appeal may be commenced to 19 September 2019. (2) Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), grant leave to appeal. (3)   Dismiss the appeal.
Catchwords:	CRIME — Sexual offences — alleged incompetence of trial counsel in failing to dispute geographical jurisdictional nexus with New South Wales in respect of one count on the indictment — whether there was a rational explanation for counsel’s approach — where dispute as to nexus on that count may have enhanced the complainant’s credibility on another count on the indictment   CRIME — Appeals — Appeal against conviction — Unreasonable verdict
Legislation Cited:	Crimes Act 1900 (NSW) pt 1A, ss 61L, 61I Criminal Appeal Act 1912 (NSW) ss 6(1), 5(1)(b) Criminal Procedure Act 1986 (NSW) ss 23, 133
Cases Cited:	Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4 Douglas v The Queen [2012] HCA 34; 86 ALJR 1086 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Category:	Principal judgment
Parties:	Philip Biggers (applicant) Director of Public Prosecutions (respondent)
Representation:	Counsel: J Paingakulam (applicant) M Kumar (Crown)   Solicitors: Swifte Law (applicant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2016/248887
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 2 November 2018 Before: Flannery SC DCJ File Number(s): 2016/248887

Judgment

1. McCALLUM JA: Philip Biggers (the applicant) was tried by judge alone in the District Court for seven sexual offences alleged to have been committed against two sisters when he was aged 39 and they were aged 17 and 16. Counts 1 and 2 on the indictment concerned the older sister, JL. The trial judge (Flannery SC DCJ) found the applicant guilty of count 1, an allegation of indecent assault, but not guilty of count 2, an allegation of sexual intercourse without consent. Counts 3 to 7 concerned the younger sister, HL. The trial judge found the applicant guilty of count 3, an allegation of aggravated sexual intercourse without consent. The circumstance of aggravation was that, at the time of the commission of the offence, HL was under the applicant’s authority. Her Honour found the applicant not guilty of the remaining counts.

2. The applicant was tried jointly with Elaine Laugesen, to whom I will refer as the co-accused. She was the applicant’s girlfriend at the time. She faced a single count of aiding, abetting and assisting the applicant to commit one of the alleged offences against the younger complainant, HL. The charge against the co-accused related to one of the counts on which the applicant was acquitted and accordingly the co-accused was also acquitted.

3. The applicant appeals against his conviction on count 1 on the ground of an alleged miscarriage of justice due to trial counsel’s failure to dispute the geographical jurisdictional nexus and on the ground that the conviction is unreasonable and cannot be supported having regard to the evidence. He appeals against his conviction on count 3 on the sole ground that the conviction is unreasonable and cannot be supported having regard to the evidence.

The Crown case concerning JL

4. The case relating to JL’s allegations may be summarised as follows. JL and HL are daughters of a friend of the applicant. Their family lived near Grafton in the north of New South Wales. The applicant was not related to the family by blood but was close enough to the girls’ father that he had come to be referred to by them as “Uncle Phil”.

5. The applicant worked as a long haul truck driver based in Sydney. During a trip to Grafton over the Easter weekend in 2016 he and the co-accused visited JL’s family. JL gave evidence that she asked them if she could go to Sydney with them for a holiday (it was HL’s recollection that it was the applicant who invited JL to go to Sydney: tcpt 128.4).

6. The applicant and the co-accused returned to Sydney with JL in the applicant’s car. It was contemplated that she would stay with them for about a week and would accompany the applicant while he was at work driving the truck. As already noted, JL was then aged 17. The applicant turned 39 during the week that JL was staying with him.

7. The Crown case was that the applicant committed two sexual offences against JL during that week. Those were the offences alleged in counts 1 and 2 on the indictment, as follows:

“1   Between 27 March 2016 and 3 April 2016, at an unknown location in the State of New South Wales, assaulted [JL] and, at the time of the assault, committed an act of indecency on her.

S 61L Crimes Act 1900

2   Between 27 March 2016 and 3 April 2016, at Elizabeth Bay in the State of New South Wales, had sexual intercourse with JL without her consent and knowing that she was not consenting.

S 61I Crimes Act 1900”

8. The offence in count 1 was alleged to have been committed at a truck stop during the return leg of a trip to Melbourne. The offence in count 2 was alleged to have been committed later, in the applicant’s apartment in Sydney. No issue was raised at the trial as to whether, if the incident alleged in count 1 occurred, it occurred in Victoria rather than New South Wales. The applicant’s defence in respect of both counts concerning JL was that the criminal acts she described never happened. Ground 1 in the appeal contends that trial counsel’s failure to dispute the existence of the necessary geographical nexus with the State of New South Wales in respect of count 1 resulted in a miscarriage of justice.

9. It may be noted that, in respect of the charges concerning the other complainant, HL, the applicant accepted that the acts she described (or at least acts of that nature) occurred but contended that HL had consented to all sexual activity between them. In the case of count 3 concerning HL, an allegation of aggravated sexual assault in the truck also during a trip to Melbourne, trial counsel did raise the geographical issue (as well as the issue of consent).

10. There was a measure of confusion in the Crown case as to the precise chronology of the relevant events concerning JL. The Crown opened its case during argument on the voir dire as to the admissibility of some tendency evidence. As the trial was to be by judge alone, there was no further opening address after the determination of that application.

11. The Crown case was opened by reference to a written timeline provided to the trial judge. That document is not before this Court but the terms of the opening give the impression that there was only one trip to Melbourne during the week that JL stayed with the applicant, or perhaps only one that was relevant to the case against the applicant. The case as opened was that the offence of indecent assault (count 1) occurred on the return leg of that trip at a truck stop between Yass and Goulburn in the State of New South Wales. The allegation was that, as they were walking back to the truck after a meal, the applicant hugged JL and grabbed her breast.

12. The Crown further contended during the opening address that the offence of sexual intercourse without consent (count 2) occurred at the applicant’s place of residence in Sydney “that night” (tcpt 6.48), that is, upon their return from the trip during which the applicant allegedly grabbed JL’s breast. It was further contended that JL was driven back to Grafton “that day” (tcpt 7.3), the suggestion being that they left for Grafton on the morning immediately following the commission of the offence in count 2. In other words, the Crown case as opened suggested that there was a continuity of events which saw JL indecently assaulted during the day on a return trip from Melbourne; sexually assaulted that night at the applicant’s residence and taken back to Grafton the following day.

13. The evidence in the trial made plain that the applicant in fact made two trips to Melbourne during the week JL was staying with him. The Crown case included call charge records from which the approximate location of the applicant’s phone at various times could be inferred (exhibit SS) as well as road toll records (exhibit JJ) and a list of BP truck stops in Victoria (exhibit MM). It is clear from the call charge records that JL and the applicant left for Melbourne on the evening of Easter Monday, returning to Sydney very early on the Wednesday and that they left Sydney for Melbourne again on the Thursday afternoon, returning very early on the Saturday.

14. JL’s evidence-in-chief was at times led in terms that appeared to assume there was only one trip, or at least that the two incidents occurred on the same trip. However, at one point she was specifically asked whether there was one trip or more than one. She responded “there was more than one trip but I don’t remember really anything about the second trip” (tcpt 55.10). She later said that the co-accused went with them on the second trip and that there was only one night between the second trip and the trip back to Grafton when they took her home (tcpt 64.30).

15. In cross-examination, JL said she was unsure as to whether the offence alleged in count 2 happened after the first trip or the second. She agreed that she had told police it had happened the night before she returned to Grafton (tcpt 100-1). That would place it after the second trip, although exhibit SS shows that they did not get back to Sydney until the Saturday morning, apparently spending only a few hours in Sydney before heading to Grafton.

16. The call charge records established that, before the first trip to Melbourne, there was what appears to have been a social trip to Nowra on Easter Sunday. It appears the applicant, the co-accused and JL left Grafton late in the evening on Easter Saturday, 26 March 2016, and drove through the night, arriving in Sydney in the early hours of Easter Sunday. After a break of a few hours, they drove to Nowra and visited the applicant’s half-brother, Robert Peacock and his partner. They returned to Sydney that evening.

17. JL remembered meeting those people but either did not remember or did not appreciate that she was in Nowra. She placed that visit in Melbourne. It is clear enough that her evidence was wrong in that respect. Mr Peacock gave evidence that the applicant visited him and his partner at his home in Nowra in the company of a woman and a girl and that he (Mr Peacock) has never been to Melbourne (tcpt 472-3).

18. JL’s confusion about the Nowra trip was an aspect of the defence argument that she was an unreliable witness. The chronology of events as described by her overlooked the day trip to Nowra altogether. Her account suggested that they arrived in Sydney from Grafton on the afternoon of Easter Sunday, that she and the co-accused went to the beach the following day (Easter Monday) while the applicant slept in and that, after she and the co-accused returned from the beach, she and the applicant set out for Melbourne, leaving at about 7:00 pm (as she recalled it).

19. Exhibit SS confirms that they set off for Melbourne that afternoon, probably leaving at about 6:00 pm.

20. The evidence at the trial included extensive records of text messages exchanged between the two accused and the two complainants (the texts were included in a number of exhibits; the most useful is exhibit BB, which combined all of the relevant exchanges in chronological order). The texts reveal that, from the outset of the first trip to Melbourne, the applicant and co-accused worked together in an attempt to persuade JL (and later HL) to have sex with the applicant.

21. The first communication to that end was a text sent at 8:15 pm on Easter Monday. It can be inferred from exhibit SS that the applicant and JL had by then been on the road to Melbourne for a little over two hours. The co-accused (who had met JL for the first time two days earlier) sent a text message to the applicant’s phone which said “I am so missing you both … Sitting here wishing we were snuggling on the lounge naked and doing what ever the hell we wanted.”

22. The applicant replied in two separate texts, “[u]s too” and then, “[JL] siad not the naked part tho [sic]”. Twenty seconds later the co-accused texted the applicant “shit go babe” to which he replied “I still love u babe xx haha”.

23. My consideration of the whole body of text exchanges between the applicant, the co-accused and the complainants over the next three weeks has left me in no doubt that the text “shit go babe” was the co-accused’s evaluation of her unsuccessful attempt in the preceding message to open sexualised dialogue with JL.

24. At 8:53 pm, the co-accused and JL had the following text exchange (the co-accused’s texts were directed to the applicant’s phone but the evidence was that JL was using his phone at that time because hers had no credit: tcpt 45.46):

“Laugesen:   Hey baby girl.. Phil’s prob is he is horney as all fuck and i can’t fix.

JL:                Haha ohh well he will have to wait till he gets home to u hahaha

Laugesen:   You can fix if you want i have no issues with it at all.

JL:                Nar im good.”

25. The following morning, which was Tuesday 29 March 2016, the applicant had the following text exchange with the co-accused (items 33 to 36 in exhibit BB):

“Biggers:      [JL’s] mother is on phone

Laugesen:    ok..is everything ok ??

Biggers:       Fishing for info

Laugesen:   shit”

26. The call charge records (exhibit SS) indicate that the applicant and JL returned in the truck to Sydney that Tuesday, crossing the border from Victoria into New South Wales shortly before 6:00 pm.

27. JL gave evidence that, “on the return journey to Sydney”, the applicant explained to her that the co-accused had cheated on him in the past and that he would like to have sex with someone, “not a stranger, like a familiar person, to have sex with” in order to “get even” (tcpt 47.41). She said the applicant told her that he had discussed it with the co-accused and that she was “fine with it”. JL told him that she did not “want any part in that”. He asked her if she was willing to have sex with him to “make the score even” and she said “no”.

28. JL’s evidence was firm as to the offence in count 1 having happened “on the way home”. She described the incident in the following terms (tcpt 48.40):

“Well we’d stopped for, I’m pretty sure it was dinner or lunch, at a truck stop, and as we’d eaten and everything we’d gone to go back to the truck, and I can’t remember what we stopped for but at some point between the rest stop and the truck we’d stopped, and I think he’d said something but I couldn’t hear it very well. And then he turned to – so we were side by side walking back to the truck and we’d stopped and he’d turned to face me, and he must have said something, but I couldn’t quite hear what he was saying. Then he gave me a hug, I think he was telling me that everything was all right. Then as I was like pulling away from the hug he had grabbed my breast on the outside of my clothing.”

29. JL said that when he grabbed her breast she stepped backwards and said, “Can you not do that”. She thought the truck stop where that happened was somewhere between Yass and Goulburn.

30. She also said that, during the same trip, the applicant had leaned over in the truck cabin and rubbed her thigh.

31. At 6:38 pm that day (Tuesday 29 March 2016), the applicant and JL had a text exchange during which he told her to “Wear the high vis shirt” when she went in for a shower. In her evidence at the trial, JL explained that they had “stopped in Albury at a truck stop that had a cafe and a shower, so like you could freshen up there and get something to eat” (tcpt 61.19). She did not specifically link the stop at Albury with the indecent assault, but nor did she exclude it.

32. It was JL’s recollection that, after they reached Sydney and had returned the truck, she and the applicant arrived back at the apartment “sort of mid-afternoon-ish” (tcpt 51.46). That does not assist in determining which trip she was describing because it was wrong either way: exhibit SS shows that each time they went to Melbourne, they returned to Sydney in the early hours of the morning.

33. JL was asked in cross-examination why she thought the offence in count 1 happened between Yass and Goulburn. She replied:

“There – the – the two names of those towns or cities – I – I have vague memories of the signs and there were things going around at the time – like on Facebook and stuff – that were, like, memes that I could remember and I made jokes about the signs about them.” (tcpt 79.13)

34. It may be noted that, if JL was there describing signs bearing the names of both towns, that would be consistent with the incident having occurred before they reached Yass rather than between Yass and Goulburn. That is consistent with the incident she described having occurred when they stopped at Albury (which, on the road from Melbourne to Sydney, is before Yass).

35. As to the time of day when the incident occurred, JL said that “it was probably – it was sort of afternoon” and that it was “sort of like mid-afternoon-ish” (tcpt 78.46). She remembered that she could see light. She was pressed in cross-examination as to whether she thought it was more likely that they stopped for lunch rather than dinner, to which she replied “I wouldn't be able to tell you” (tcpt 79.7). She confirmed that it was not dark. The question as to whether they stopped for lunch or dinner assumed they were adhering to the habits of a white collar office worker. It is clear enough from exhibit SS that the demands of the applicant’s work as a long haul truck driver did not permit such an orderly routine.

36. Later in the cross-examination it was put to JL that they had not been at a truck stop between Yass and Goulburn during daylight on either trip to Melbourne. She replied “From what I can recall, it, it was still at – there was still at least a bit of light left in the day” (tcpt 107.15). The terms of that answer indicate that she was more confident that it was light than that the relevant truck stop was between Yass and Goulburn. It also had the ring of an answer based on memory rather than a story she was making up.

37. Concerning count 2, JL said that, after they returned from Melbourne, she watched TV for a while and then got into her pyjamas and took her sleeping tablet. She said that she became drowsy and fell asleep. After that, she became aware that someone was in bed with her. She dozed off again and awoke later to realise that someone had rolled her onto her back and was lying on top of her. She realised that it was the applicant and that he was having sex with her. Her evidence was that she said “no” and “I don't want this, get off of me” (tcpt 54.5). When she next awoke in the early morning her hips and vagina were sore.

38. JL was cross-examined as to the content of her statement to police. She agreed that she told police she had not called her father to tell him about the indecent assault (the grabbing of her breast) because she knew she was going home “in a couple of days” (tcpt 80.13) and she didn’t want to worry him. That evidence was relied upon by the applicant as being inconsistent with the proposition that the indecent assault happened on the first trip. I do not accept that there is any inconsistency. The return leg of the second trip was the very day before they returned to Grafton (not “a couple of days” before); the return leg of the first trip was four days before their return to Grafton.

39. Concerning the events following the alleged sexual assault at the applicant’s unit, JL agreed that she told police she was “leaving back to Grafton that same morning” and that she just stayed as far away from the applicant and the co-accused as she could (tcpt 82.19). She had a specific recollection that she woke up in the morning knowing that she was going home that day, that is, upon waking up after the applicant had sexual intercourse with her.

34. The Crown called tendency evidence from HB, the victim of sexual offences committed by the applicant many years earlier commencing when HB was about 11 and the applicant was about 21. Her Honour placed some reliance on that evidence in considering JL’s allegations but it was not the focus of any argument in the appeal and it is not necessary to consider it further.

35. The Crown in closing noted that it was not essential for the judge to determine beyond reasonable doubt whether the offences occurred on the first or second trip because the dates in the indictment covered both. However, he submitted that the evidence supported a conclusion that the offences probably took place during and after the second trip. It was submitted that the trip about which JL said she remembered very little was the first in time and that when she referred to it as “the second trip” she should be taken to have meant “the other trip”, not the second in time.

36. Trial counsel for the applicant submitted that JL’s evidence was unreliable and could not be accepted. He relied on a number of features of her evidence to support that submission.

37. The principal submission concerning count 1 was that the offence could not have occurred as JL described because she and the applicant were not at a truck stop between Yass and Goulburn during daylight on either return leg from Melbourne. So much may be accepted. The call charge records (exhibit SS) showed that, on the first return trip (29 March 2016), JL and the applicant probably crossed the border between Victoria and New South Wales some time shortly before 6:00 pm (bearing in mind that such records do not purport to pinpoint the location of the phone; they show the location of the telephone tower that has picked up the signal from the phone each time it is used: tcpt 465.32). Exhibit SS showed that the signal from the applicant’s phone was picked up by a tower described as “Wooragee North” in Victoria at 5:41 pm and then by a tower described as “Springdale Heights” in New South Wales at 5:47 pm. The towers take their name from the location but might not necessarily be located within a town of the same name.

38. The call charge records were, however, consistent with JL’s evidence that they stopped for a meal and a shower at a truck stop in Albury. There is no tower described as “Albury” but the signal was picked up at the tower named “Lavington”, a town near Albury, a number of times between 6:03 pm and 6:59 pm). It follows that they could well have been at the truck stop at Albury at a time when there was some light left in the day. The records also indicate that there was probably a stop at Marulan (which is beyond Goulburn on the road from Melbourne to Sydney) but that would have been well after dark, between about 11:39 pm and 1:08 am. On the second return trip (1-2 April 2016), they did not cross the border into New South Wales until well after dark. Further, as noted in the applicant’s submissions in this Court, the time it took for the truck to travel from Gundagai to Minto Heights (near Campbelltown) suggests that the truck must not have stopped at all during that leg of the trip.

39. In short, the Crown case was that, while it was not necessary for the judge to determine the issue, the likelihood was that both offences occurred on and after the second trip. The Crown in closing did not address the possibility that the offences occurred on different trips and did not attempt to reconcile JL’s evidence with exhibit SS.

40. Trial counsel for the applicant then addressed the judge, as he was entitled to do, on the basis of the case as closed by the Crown, namely, that the offences occurred on the same trip and that it was the second trip. On that premise, he was able to make a powerful point as to JL’s unreliability, noting that exhibit SS clearly established that they did not pass between Yass and Goulburn during daylight on that trip. As to count 2, trial counsel noted JL’s account that they returned to Sydney in the evening after the second trip; that she took her sleeping tablet and fell asleep and that it was during that night that the applicant sexually assaulted her. On the strength of that evidence, counsel was again able to make a powerful submission on the basis of exhibit SS, which established that they did not spend that night (or indeed the night before) in Sydney. They did not get back until the morning, spending only a few hours in Sydney before heading back to Grafton. Unfortunately, the Crown had not addressed the anomaly between the call charge records and JL’s account either in her evidence-in-chief or in his closing address. Trial counsel for the applicant had cross-examined JL about her recollection that they spent that night in Sydney but it was not put to her explicitly that they did not return to Sydney until the morning of the day they returned to Grafton.

41. Assuming the inconsistency between JL’s account and exhibit SS ruled out the possibility that count 2 occurred after the second trip, trial counsel for the applicant then addressed the unlikelihood that JL would have made a second trip to Melbourne with the applicant if he had sexually assaulted her the night they returned from the first trip. He also raised what he contended was the unlikelihood that, upon learning that HL was going to spend a week with the applicant, JL would have said nothing to warn HL about him if the events she described had really happened.

The trial judge’s findings concerning JL

48. The trial judge was satisfied beyond reasonable doubt as to count 1. Her Honour said at [130] that, although JL’s account that the incident occurred when it was daylight and when the truck was between Yass and Goulburn could not be correct, she accepted JL’s account of the conversation in which the applicant asked JL to have sex with him to even the score with the co-accused and she accepted her account of the indecent assault.

49. At [131] her Honour gave three reasons for accepting JL’s evidence as to count 1:

1. that she found her to be “quite a straightforward witness”;

2. that her account was consistent with what the tendency evidence revealed was the applicant’s modus operandi; and

3. that it was consistent with the texts in which the co-accused suggested JL could have sex with the applicant if she wanted to.

50. Her Honour concluded at [134]:

“In those circumstances, I am satisfied beyond reasonable doubt that;

(1)    between 27 March 2016 and 3 April 2016 at an unknown location in the State of New South Wales, Mr Biggers assaulted JL by putting his hand on her breast outside her clothing,

(2)    the assault was indecent,

(3)    it was without JL’s consent, and

(4)    Mr Biggers was reckless about her not consenting either because he realised there was a possibility that she was not consenting and went ahead anyway or he did not even think about whether she was consenting or not, treating the question of whether she was not consenting as irrelevant.”

51. However, the anomalies identified by trial counsel prompted the judge to entertain a doubt as to count 2. The treatment of that count in the judgment was relatively brief. The judge considered at [128] that “JL’s evidence about when these things occurred, does not sit comfortably with Exhibit SS”. Contrary to the case contended for by the Crown, her Honour considered it “more likely that what [JL] alleges, at least in respect of count 2, if it occurred, occurred after the first trip to Melbourne”. On that basis, the judge reasoned that JL must have travelled to Melbourne a second time with the applicant after she alleges she was raped by him, which her Honour evidently found implausible (see judgment at [128]).

52. In limiting that finding in those terms (that “at least” count 2 occurred after the first trip), the judge did not articulate any express finding as to when count 1 occurred.

53. The judge’s conclusion in respect of count 2 was explained as follows at [135]-[136]:

“In respect of count 2, I consider it is likely that sexual intercourse occurred between Mr Biggers and JL, however I am not satisfied beyond reasonable doubt that it occurred in the way JL described, having regard to Exhibit SS, and her failure to say anything to anyone about what she alleges occurred at the time she knew HL was accompanying the two accused to Sydney.

Although the Crown pointed out that;

(1)   JL gave evidence that she said, “I don’t want this, get off me”, when she realised Mr Biggers was having sex with her, and

(2)   the text messages on at least 28 March 2016 suggest that she rebuffed Ms Laugesen’s attempt to interest her in having sex with Mr Biggers,

as I am;

(1)   not confident that the events took place in quite the way JL said they did, and

(2)   not satisfied that Mr Biggers knew that JL was taking sleeping medication during the time she was in Sydney,

I am unable to find beyond reasonable doubt that Mr Biggers had sexual intercourse with JL without her consent, knowing that she was not consenting.”

54. Her Honour did not expand upon the significance of exhibit SS to the conclusion that sexual intercourse likely did occur but not “in the way JL described” but it may be inferred that her Honour accepted trial counsel’s submission as to the fact that the applicant and JL (and apparently the co-accused) did not return from Melbourne on the second trip until morning. Counsel for the applicant in this Court submitted that, in light of the finding that it was likely that sexual intercourse occurred, her Honour must have had a doubt about the issue of consent. It will be necessary to return to that issue in the discussion of ground 2.

Ground 1: the geographical jurisdictional nexus in respect of count 1

55. Ground 1 is framed as follows:

“A miscarriage of justice was occasioned on count 1 as a consequence of the trial counsel’s failure to dispute the existence of the necessary geographical nexus.”

56. This ground raises the application of the provisions concerning geographical jurisdiction contained in pt 1A of the Crimes Act 1900 (NSW). That part extends the application of a law of the State that creates an offence beyond the territorial limits of the State if a geographical nexus exists between the State and the offence: s 10A(2). In the circumstances of the present case, a geographical nexus with New South Wales existed only if the offence was committed wholly within the territorial limits of the State: cf s 10C(2).

57. Section 10E(1) provides that the necessary geographical nexus for an offence is presumed and that the presumption is conclusive unless rebutted after having been disputed by the accused. The applicant’s argument proceeded on the assumption that the operation of that section was to create a conclusive presumption that the offence in count 1 occurred within New South Wales unless that was disputed by the accused at trial (rather than requiring the Crown to exclude any reasonable possibility that the offence occurred outside New South Wales). The argument also assumed that, where the presumption is disputed by an accused person, the onus of proof is on him or her to satisfy the trier of fact on the balance of probabilities that the necessary geographical nexus does not exist. As already noted, trial counsel for the applicant disputed the presumption in respect of count 3 but not in respect of count 1.

58. Ground 1, as framed, overlooks an important aspect of the assessment as to whether counsel’s conduct of a trial has occasioned a miscarriage of justice. Such a ground is ordinarily framed by reference to alleged incompetence on the part of trial counsel; that is to emphasise the role of forensic judgment in the conduct of criminal proceedings. A bare “failure to dispute” a disputable fact does not on its own establish a miscarriage of justice. The relevant decision or omission must be considered in the context of the issues in the trial. The relevant principles were summarised in the decision of this Court in Alkhair v R [2016] NSWCCA 4 at [31] (per Macfarlan JA, with whom Rothman and Bellew JJ agreed) as follows:

“I draw from these authorities the following principles relevant to the present case:

(1)   To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

(2)   Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

(3)   Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the applicant’s legal representatives’ reasoning at trial or to evidence as to communications between the applicant and those representatives.

(4)   The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open.”

59. As stated by Macfarlan JA, the ultimate question is whether the failure of trial counsel to dispute the statutory presumption resulted in a miscarriage of justice. The determination of that question does not end with the inquiry as to whether there was a proper basis in the evidence for submitting that the offence might have occurred outside New South Wales. The presentation of a coherent, strategic defence does not require trial counsel to take every point and indeed often calls for an anxious choice between competing, inconsistent case theories.

60. The indictment in the present case contained two counts against the applicant concerning JL, as allowed by s 23 of the Criminal Procedure Act 1986 (NSW). That complicated the forensic decisions to be made in the conduct of the trial, particularly where the occurrence of both offences was denied and where there was no geographical point as to the more serious charge. The offence alleged in count 2 was considerably more serious than count 1. The offence of indecent assault in count 1 carried a maximum penalty of imprisonment for five years while the aggravated sexual assault in count 2 carried a maximum penalty of imprisonment for 14 years with a standard non-parole period of seven years. Further, the allegation in support of count 1 (grabbing the breast of a 17 year old girl), without suggesting that it was not a serious matter, was, relatively speaking, a less serious instance of the relevant offence than the allegation in support of count 2 which, if accepted, would have established a very serious instance of the offence involving taking advantage of a vulnerable girl knowing that she could not have been consenting.

61. The best evidence as to geography was the call charge records in exhibit SS. It may be accepted that, according to those records, it was theoretically possible that the offence of indecent assault as described by JL occurred outside the State of New South Wales. On the return leg of the first trip to Melbourne, the exhibit contains six entries consistent with the truck having stopped in the vicinity of Campbellfield in the State of Victoria between about 1:27 pm and 2:08 pm on 29 March 2016. On the return leg of the second trip, the truck was in Victoria for most of the day on 1 April 2016. It did not cross the border into New South Wales until probably after 10:00 pm. As already indicated, the present inquiry does not end there. The question is whether the failure to dispute the presumption as to geographical nexus resulted in a miscarriage of justice.

62. The applicant’s submissions focussed on count 1 alone. Counsel for the applicant repeated the submission put at trial that the indecent assault could not have occurred as JL described it.

63. As to the second trip, she relied on the complainant's recollection that the alleged assault took place in daylight, submitting that it is far more likely that the complainant would have remembered whether it was daylight when picturing the assault in her mind than that she would have remembered its location if the location was not otherwise familiar to her. That is a submission founded on the assumption that the assault in fact occurred. That is the premise of this ground of appeal but it is contrary to the defence at trial.

64. Counsel in the appeal noted that the objective evidence was that the truck passed between Yass and Goulburn in the middle of the night. She further submitted that it is “simply implausible” that the applicant and JL would have stopped at a truck stop for lunch or dinner at that time. Importantly, as already noted, she also submitted by reference to the times the applicant's mobile phone was placed at Gundagai and then Minto Heights that the truck must not have stopped at all during that period. Finally, she submitted that the evidence suggested there was a stop in Victoria on the return leg of the second trip.

65. As to the possibility that the alleged indecent assault took place on the first trip, the applicant submitted that the call charge records are consistent with there having been a stop in Victoria in the afternoon. She further submitted that, in light of the evidence given by JL, it was not open for the trial judge to find that the assault occurred at Albury. I do not accept that submission. It was based on the proposition that, when JL was shown text messages which reminded her of the stop at Albury, she did not volunteer a link between Albury and the indecent assault. However, I do not read her evidence as excluding the possibility that the indecent assault occurred at Albury. Indeed, based on my assessment of the evidence as a whole, I am persuaded that it probably did occur on the return leg of the first trip to Melbourne at the truck stop at Albury, for the reasons explained in the discussion of ground 2 below at [71].

66. Returning to the geographical question, while it may be accepted that it was possible having regard to the evidence that the indecent assault occurred in Victoria, there were powerful tactical reasons for not disputing the presumption of geographical nexus in the present case. The defence was that neither incident happened and that JL was a wholly unreliable witness. Counsel could have put the alternative hypothesis to her: that, if an event happened as she described, it happened in Victoria. There is no legal principle or ethical constraint that would have prohibited the exploration of an alternative, inconsistent defence.

67. Tactically, however, it would have been dangerous to adopt that approach. The critical forensic task for trial counsel was to persuade the trial judge that JL was an unreliable witness. Leaving aside the issue of geographical nexus, the evidence as it stood afforded trial counsel a powerful submission on that issue. So long as she was tied to her version that the incident occurred between Yass and Goulburn, her evidence contained irreconcilable anomalies. The offence could not have occurred as she described because at that point, on either trip, it would have been dark. If she was describing an incident that occurred on the second trip, exhibit SS provided no support for the proposition that they stopped in New South Wales at all and appeared to indicate that they did not. JL’s evidence simply could not be accepted, so the argument went.

68. If counsel had disputed the presumption as to the necessary geographical nexus for count 1 (thus taking on the onus of proof implied in s 10E(2)), he would necessarily have had to submit to the trial judge that JL was probably mistaken when she placed the indecent assault as having occurred between Yass and Goulburn. The submission may have had some force; her basis for doing so was tenuous at best. It is clear that JL paid little attention to her location at the time, let alone being able to recall it over two years later. That is hardly surprising having regard to the duration of their trips and the distances they covered, the evidence that JL was on medication that included sleeping pills and the indication that she spent a deal of time on her phone.

59. However, the result of removing that convenient anomaly in her evidence would have been to spoil the two principal credit points taken by the accused. It would have meant the offence of indecent assault could well have occurred during daytime on either trip and that both offences could well have occurred on the second trip, removing the argument as to the implausibility of her having made a second trip to Melbourne if she had been sexually assaulted after the first. Had the point been taken at trial, there was a substantial risk that the applicant may have secured an acquittal on count 1 at the expense of a conviction on count 2. Far from being incompetent, it is my assessment that trial counsel’s decision not to risk clarifying the anomalies in JL’s evidence for the sake of the less serious charge was objectively rational and indeed showed good judgment.

60. My assessment of the record of the trial has led me to the conclusion that a decision not to dispute the geographical presumption in respect of count 1 was well and truly capable of being rationally explained as a step taken in the interests of the accused. In the circumstances, it is not necessary to resort to the subjective evidence: Alkhair at [31(3)]. For those reasons, I would dismiss ground 1.

Ground 2: unreasonable verdict on count 1

71. This ground invokes the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), which requires the Court to allow an appeal against conviction “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. The principles to be applied in determining such a ground are well established. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (‘Filippou’), the High Court confirmed that the same principles are to be applied in the case of a trial by judge alone: at [11]-[12] (per French CJ, Bell, Keane and Nettle JJ); at [82] (per Gageler J). In the joint judgment, their Honours said at [12]:

“It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice.”

72. The joint judgment reiterated the well-known caution stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494, restating it for the purpose of a judge-alone trial as follows at [12]:

“It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. ... If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

73. In a separate judgment, Gageler J noted that s 133 of the Criminal Procedure Act 1986 (NSW) (which requires the judge to include in the judgment, among other things, the findings of fact on which he or she relied) draws a distinction between the judge’s ultimate finding on the question of guilt and intermediate findings of fact made in the reasoning in support of that finding. His Honour explained how the availability of the trial judge’s intermediate findings of fact may affect the process by which this Court applies the relevant principles when considering a ground that the verdict is unreasonable, or cannot be supported, having regard to the evidence. His Honour emphasised, however, that the question is always whether the “ultimate finding of guilt” was one which was open to the tribunal of fact on the whole of the evidence: at [83].

74. The authorities emphasise the task of this Court to make its own independent assessment of both the sufficiency and the quality of the evidence. Justice Gageler expressed the view in Filippou at [83] (with which I respectfully agree) that, where the argument made in support of an unreasonable verdict ground rests on particular reasons why the verdict was not open, it may be open to this Court to discharge its appellate function by making its own independent assessment of the evidence to the extent necessary to engage with the 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.”

75. A complexity in the present appeal, which did not arise in Filippou, is that the argument in support of the ground that the verdict on count 1 is unreasonable rests to an extent on the trial judge’s findings in respect of count 2. This Court is of course bound to proceed on a basis that is consistent with the applicant’s acquittal on that count. However, in accordance with Gageler J’s analysis, I have taken the view that the Court is permitted and indeed required to undertake its own independent analysis of all of the evidence invoked in support of the applicant’s argument. To the extent that, in making that assessment, I have taken a different view concerning intermediate facts from that taken by the trial judge, the proper approach in my view is to act on my own assessment so long as it is not inconsistent with the verdict of not guilty on count 2.

76. Finally, I note that this ground is to be determined on the premise that the trial judge was required to reach her ultimate finding on the question of guilt in accordance with the statutory presumption as to the necessary geographical nexus. It is not open to the applicant to seek to have the verdict set aside on the basis of ground 2 by establishing the existence of a reasonable doubt as to whether the offence occurred within the territorial limits of New South Wales. At trial, the nexus was the subject of a statutory presumption which was conclusive and this Court is required to assess the evidence on that basis.

Argument that the evidence cannot be correct

77. The first argument in support of ground 2 reprised the submission put to the trial judge that JL’s evidence in support of ground 1 cannot be correct because at no point were JL and the applicant between Yass and Goulburn in daylight hours. It was submitted at trial that “a simple thing such as whether it was day or night or light or dark is something which, if it was a real event, would be likely to be in [JL's] memory” (tcpt 577.8). It was accordingly submitted that this was an anomaly of the kind that should create a serious doubt as to whether the incident happened at all.

78. The applicant submitted that this was particularly the case given the asserted implausibility of the proposition that he and JL would have stopped at a truck stop for a meal between Yass and Goulburn in the early hours of the morning. For my part, I would not be confident in making any assumption as to when a long haul truck driver who is practically nocturnal and barely appears to sleep might have “lunch” or “dinner”. In any event, the submission assumed the incident occurred on the second trip rather than the first (exhibit SS puts them at Marulan on the first trip at 11:39 pm and at Collector, near Goulburn, on the second trip at 2:41 am).

79. As already explained, the trial judge did not make an express finding as to which of the two trips to Melbourne involved the indecent assault. On my assessment of the evidence, it is more likely that the incident as described by JL occurred at Albury on the return leg of the first trip. It was common ground that JL and the applicant stopped for a meal at Albury on the return leg of that trip. JL was far from confident that the incident occurred between Yass and Goulburn; she said she was doing her best but her basis for specifying that location was tenuous. Further, as already explained, the call charge records indicate that they probably crossed the border into New South Wales shortly before 6:00 pm, arriving at Albury at around 6:30 pm, when there could well still have been “a bit of light left in the day”, consistent with JL’s evidence at tcpt 107.15.

80. In any event, the trial judge expressly considered the daylight issue at [130]. Her Honour accepted that JL’s version that the incident occurred when it was daylight and when the truck was between Yass and Goulburn “cannot be correct” but nevertheless accepted JL’s evidence based primarily on her assessment of JL as a witness, an assessment as to which her Honour had an advantage over this Court.

81. A further anomaly addressed in the applicant’s submissions is that JL placed the visit to the two people in Nowra as being in Melbourne. She connected that with the commencement of the applicant “acting weird” and “saying creepy things to me about sex” (tcpt 93.31). The applicant submitted “it was clear from the defence case that no such Melbourne visit ever occurred”.

82. It may be accepted that the evidence in the defence case established that JL was mistaken as to having met Mr Peacock and his partner in Melbourne. However, she did meet them in Nowra and there is nothing implausible in her evidence that the applicant “saying creepy things to [her] about sex” began on the return from that trip. In assessing the significance of her error concerning the trip to Nowra, it is relevant to have regard to the hours, times and distances she and the applicant travelled within the space of less than a week. In my assessment, it is hardly surprising that JL became confused as to the places they went and the chronology of events. None of the anomalies relied upon by the applicant has prompted me to entertain any doubt as to the reliability of JL’s core account as to the elements of count 1.

The judge’s assessment of JL as a straightforward witness

83. The second argument in support of ground 2 related to the trial judge’s finding that JL was “quite a straightforward witness”. The applicant submitted that it was unclear what the trial judge meant by that finding. It was further submitted that, if her Honour meant that JL’s evidence was both reliable and credible, that was not supported by the finding that neither offence occurred in the manner described by JL and indeed by the decision to acquit the applicant of count 2.

84. In that context, the applicant pointed to two further matters as to which the trial judge did not accept JL’s evidence. The first was JL’s evidence that, during her week with him, she was adhering to her usual medication regime (including taking a sleeping tablet at 8:00 pm each night).

85. It is by no means clear that the trial judge treated JL’s evidence on that issue as a matter going to her credibility. The passage of the judgment cited in support of the submission is at [129] of the judgment, where her Honour said:

“I agree with [trial counsel for the applicant] that the evidence does suggest that JL was not sticking to her usual medication taking regime while she was in Sydney, having regard to her evidence that she shared the driving on the way to Sydney from Grafton, which the evidence shows took place after 9pm, and as it is clear from Exhibit BB that she sent texts well past 9pm. In those circumstances and, as

(1)   [JL’s father] did not have a specific recollection of the conversation in which he and JL discussed her remembering to take her medication, and

(2)   I consider Mr Biggers’ reaction in the ERISP when Detective Senior Constable Carter asked him if JL was taking any medication that he was aware of, a genuine one,

I am not satisfied that Mr Biggers knew that JL was taking sleeping medication during the time she was in Sydney.”

86. The concluding part of that sentence indicates her Honour was considering the issue of medication as being relevant to the accused’s knowledge of lack of consent rather than on the question of actual consent. JL did not assert unequivocally that she adhered to her medication regime without exception. Having regard to the times she and the applicant travelled together in the truck, it would have been extremely difficult for her to do so. I do not think this is a point that goes to JL’s reliability or credibility.

87. Secondly, it was submitted that the trial judge did not accept JL’s evidence that the applicant was aware she was taking sleeping medication, also referring to [129] of the judgment. I do not think this is a particularly significant point but in any event the submission conflates what JL asserted had been said in the applicant’s presence with the applicant’s actual state of knowledge. JL could not purport to say what the applicant in fact knew.

88. To the extent that this submission relies on the judge’s assessment of the evidence in support of count 2 to support the contention that JL’s evidence was not both reliable and credible, it is necessary to address count 2.

89. In closing submissions, the Crown adhered to his case that the sexual assault occurred the night before JL returned to Grafton. As the case had been opened, that had been characterised as “the trip to Melbourne”. By the time of closing addresses, the Crown accepted that it was the second trip of two trips to Melbourne.

90. The trial judge said at [128]:

“Although the Crown suggested that I would find the things JL alleges occurred, occurred during and after the second trip to Melbourne, JL’s evidence about when these things occurred, does not sit comfortably with Exhibit SS, and so I consider it more likely that what she alleges, at least in respect of count 2, if it occurred, occurred after the first trip to Melbourne, which must have been on 30 March 2016, and mean that she travelled to Melbourne a second time with Mr Biggers.”

91. The proposition that JL, after being sexually assaulted, had gotten back into the truck and returned to Melbourne a second time with the applicant played a significant role in the judge’s conclusion that count 2 was not proved beyond reasonable doubt.

92. As already noted, the judge did not expand upon the proposition that JL’s evidence did “not sit comfortably with Exhibit SS”. It may be inferred that her Honour accepted the submission put by trial counsel, which brought to mind the fact that JL recalled returning to the unit in Sydney in the evening, watching television, taking her sleeping tablet and then falling asleep before finding the applicant on top of her having sex with her. It may further be accepted that that account did not sit comfortably with the times identified in exhibit SS, which indicates that they returned from the second trip arriving in Sydney in the early hours of the morning (the first hit on the tower at Ultimo is at 5:23:14).

93. Conversely, however, the evidence does not exclude the possibility that the applicant, the co-accused and JL were together in the unit in Sydney for a period of perhaps up to two hours between returning from the long haul overnight from Melbourne to Sydney and a second long haul drive from Sydney to Grafton the same day, where they arrived at about 10:30 pm that evening.

94. I note in this context that the trial judge found at [135] that it was likely that sexual intercourse occurred between the applicant and JL. As already noted, counsel for the applicant in this Court submitted that her Honour must accordingly have had a doubt as to the element of consent in respect of count 2, which she submitted must reflect on the reliability of JL’s evidence in support of count 1.

95. The submission was, with respect, contrary to principle and logic. The requirement is for the trier of fact to consider consent in respect of each allegation separately. The fact of consent to a later act does not compel the conclusion that there was consent to an earlier act.

96. The primary judge did not articulate the basis for her ultimate finding that the accused was not guilty of count 2 by reference to the elements of the offence. The language of the judgment on that issue is, with respect, oblique in that it is not stated whether her Honour entertained a doubt as to the issue of JL’s lack of consent in fact or as to the issue of the applicant’s knowledge of her lack of consent. On my assessment of the evidence, I see no basis whatsoever for doubting JL’s evidence that she did not consent to any act of sexual intercourse with the applicant. I would not feel comfortable in drawing any inference as to the fact that JL said nothing to HL (in the short period of the handover) to warn her about the applicant. The evidence clearly established that the dynamics in that family were complex. The impartial assessment of evidence requires a tribunal of fact to take care not to make untested assumptions or value judgments as to how a teenager would act after being sexually assaulted.

97. JL’s description of what happened to her in count 2 was, in my assessment, compelling. She was clear that the incident occurred immediately before her return to Grafton and her reasons for remembering that were cogent (her hips and vagina were sore and she knew she was going back to Grafton that day). On my assessment of the evidence, assuming sexual intercourse occurred between the applicant and JL (as the trial judge thought likely), it is more likely to have occurred after the second trip than the first.

98. That conclusion finds some support in a text exchange between the co-accused and the applicant commencing at about 7:36 am on 2 April 2016. The closing submissions for the accused urged the trial judge to accept that the co-accused did accompany the applicant and JL on the second trip to Melbourne, as JL recalled (a further factor supporting the conclusion that the indecent assault occurred on the first trip rather than the second). If the co-accused did go on the second trip, the exchange might have occurred while she was in the cabin of the truck and the applicant was outside supervising the unloading of cargo. The applicant told police that he would exchange texts with people in the truck in that circumstance. The exchange was as follows (entries 102-109 of exhibit BB):

“Laugesen:   I so LOVE you. And am so veey horney [sic]

Biggers:       Love you too baby … and me toooooooo

Laugesen:   How u doing??

Biggers:       Very tired and over waiting for each paller [sic] to come off

Laugesen:   Fuck So they r shit go at unloading

Biggers:       Nah just got other little jobs to do as well

Laugesen:   Like fuck me now??

Laugesen:   Sorry … Like … u going to fuck me now”

99. In light of that exchange, the possibility that they returned to the apartment and that there was sexual activity at that time before the commencement of the trip to Grafton seems less remote than apparently thought by the trial judge.

100. Further, I am not troubled by JL’s confusion as to its being night time when they returned. As already observed, they were not following an orderly routine during that week.

101. It is clear in my view that, in describing JL as “quite a straightforward witness”, the trial judge meant to record that she regarded JL as appearing to be honest. That assessment, considered alongside the objective evidence, was enough to persuade her Honour beyond reasonable doubt as to count 1. As to the submission that the trial judge’s findings concerning count 2 indicate that her Honour had a doubt as to the element of lack of consent for that count, it is not clear to me whether that is the basis on which her Honour acquitted the applicant of that count but, if it is, it is not a doubt I share.

Tendency evidence

102. The applicant’s submissions addressed the tendency evidence briefly but ultimately accepted that it was capable of supporting the verdict in relation to count 1. Accordingly, it is not necessary to address that issue further.

The text messages of 28 March 2016

103. Finally, the applicant made submissions concerning text messages dated 28 March 2016 in which the co-accused in effect invited JL to have sex with the applicant if she wanted to. The submission accepted that the text messages demonstrated that the applicant had a general sexual interest in JL but submitted that, assuming the offence in count 1 occurred on the return leg of the second trip to Melbourne (rather than the first), the effluxion of time between those messages and the alleged indecent assault eroded their probative force.

104. Alternatively, it was submitted that, if the finding was that the indecent assault took place on the return leg of the first trip to Melbourne, that was inconsistent with JL’s evidence. Accordingly, so it was submitted, JL’s evidence was unreliable and it was not open to the trial judge to be satisfied beyond reasonable doubt as to count 1.

105. The submission was directed in part to exhibit SS and the fact that the applicant’s call charge records place him in the vicinity of Wooragee North (which is in Victoria) from 5:14:28 pm to 5:41:51 pm on 29 March 2016. However, as already explained, it is clear that the truck had crossed the border into New South Wales by about 6:00 pm and it is common ground that they stopped at Albury, which is in the State of New South Wales.

106. The applicant submitted that the incident could not have happened at Albury because, when shown the relevant text messages which placed the applicant and JL at Albury at that time, JL “made no mention of the alleged indecent assault taking place during that stop”. It was submitted on that basis that it was not open for the trial judge to find that the alleged indecent assault occurred in Albury.

107. For the reasons already explained, I do not accept that submission. The passage of evidence relied upon was specifically focused on the content of the text messages referring to the need for JL to wear a high viz vest while she was walking from the truck to the shower area. I have considered her evidence closely and find nothing inconsistent with the proposition that the indecent assault which she described as happening probably between Yass and Goulburn in fact occurred at the truck stop at Albury.

108. For those reasons, the applicant’s submissions have not persuaded me that there is any reasonable doubt as to his guilt in respect of count 1. I would dismiss ground 2.

The Crown case concerning HL

109. The applicant and the co-accused took JL back to Grafton on Saturday 2 April 2016. They returned to Sydney the following day with HL.

110. HL was aged 16 at that time and was in year 10 at Grafton High. There was evidence from her father that her social and emotional progress had been “a little stunted” from the time she started school and that she had trouble connecting with her peer group (tcpt 317). This had resulted in her repeating one of her primary school years. HL’s father recalled discussing with the applicant the fact that he felt HL was a bit slower than the rest of the kids her age and that she had “developmental issues”. HL’s grandmother, with whom the girls had lived for many years after their father’s marriage broke up, gave evidence in which she described HL as being “a little bit slow in things” and “sort of behind a little with – with development and stuff” (tcpt 389.22).

111. As already noted, the applicant was aged 39 at the time HL came to stay with him.

112. The Crown case was that HL spent two weeks with the applicant and that he committed five sexual offences against her during that time, one of which involved the co-accused. HL’s stay with the applicant concluded on 15 April 2016 when they were returning to the flat together and the applicant was approached by police. While the evidence is not entirely clear on this issue, it appears that, by having HL in his company, the applicant was in breach of conditions imposed upon him as a result of his status as a person on the sex offender register. Police spoke to HL and ultimately obtained a statement from her which resulted in the applicant being charged with the present matters. JL made her statement to police upon learning that HL was to make a statement.

113. Counts 3 to 7 concerning HL were as follows:

“3.   Between 1 April 2016 and 15 April 2016, at an unknown location in the State of New South Wales, had sexual intercourse with HL without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that at the time of the commission of the offence HL was under his authority.

4.   Between 1 April 2016 and 15 April 2016, at Elizabeth Bay in the State of New South Wales, had sexual intercourse with HL without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that at the time of the commission of the offence HL was under his authority.

5.   Between 1 April 2016 and 15 April 2016, at an unknown location in the State of New South Wales, had sexual intercourse with HL without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that at the time of the commission of the offence HL was under his authority.

6.   Between 1 April 2016 and 15 April 2016, at Sydney in the State of New South Wales, assaulted HL and, at the time of the assault, committed an act of indecency on her in circumstances of aggravation, namely that at the time of the commission of the offence, HL was under his authority.

7.   Between 1 April 2016 and 15 April 2016, at Elizabeth Bay in the State of New South Wales, had sexual intercourse with HL without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that at the time of the commission of the offence HL was under his authority.”

114. It was common ground at the trial that the applicant did have sexual intercourse with HL four times, twice in the truck and twice in the apartment in Sydney. The defence on all counts was consent. As already noted, in respect of count 3 (alleged to have occurred in the truck during a trip to Melbourne), trial counsel for the applicant also disputed the geographical nexus with New South Wales. However, there was evidence to support the trial judge’s finding that the sexual intercourse alleged in count 3 occurred in New South Wales and there is no challenge to that finding.

115. As already noted, the trial judge found the applicant guilty of count 3, which her Honour found was the first act of sexual intercourse between HL and the applicant. He was acquitted of the remaining charges, evidently because her Honour was not persuaded beyond reasonable doubt of the elements of lack of consent and knowledge of lack of consent. The particular way in which her Honour reasoned to that conclusion is explained later in this judgment.

116. The applicant’s submissions in support of ground 3 are confined to the contention that the following elements of the offence cannot be proven beyond reasonable doubt:

1. that HL did not consent to the sexual intercourse;

2. that there were no reasonable grounds for believing that she consented.

117. Attention can accordingly be confined to those elements, although it will be necessary for the purpose of engaging with the applicant’s arguments to consider other aspects of the evidence.

118. As with JL, there was a measure of confusion in HL’s evidence as to the chronology of the relevant events. The text messages and call charge records again provide the clearest basis for resolving that confusion. HL’s trip to Sydney began on Sunday 3 April 2016. From that time, the applicant sent HL many texts making many sexual overtures to her. During the trip from Grafton to Sydney there was one occasion when he sent text messages to both HL and JL within seconds of each other, saying to HL, “love you beautiful” and to JL, “miss you”.

119. HL initially responded to the applicant’s overtures with clear statements that she was not interested in having sex with him. Over time, however, the language of her communications changed. By the end of the fortnight, she was saying that she wanted to live with the applicant and the co-accused and go to school in Sydney. The question of consent is accordingly a complex issue and it is necessary to consider the relevant communications in some detail.

120. Exhibit SS indicates that, by 6:00 pm on Sunday 3 April 2016, the applicant’s phone was in the vicinity of Elizabeth Bay, where his apartment was. It may be inferred from the text messages discussed below that the applicant and HL were in the apartment at that time but in different rooms. It appears the co-accused was also present in the apartment but the applicant was communicating with her by text as well, presumably either because they were not in the same room or so as not to be overheard by HL.

121. At 6:35 pm that evening, the applicant had the following text exchange with the co-accused:

“Biggers:    Baby … I so badly want to … wtf am I going to do?

Laugesen:   just ask her

Biggers:   But don't want to freak her out

Laugesen:   can't help you then

Biggers    What you think the answer would be?

Laugesen:   not sure

Biggers:   Hmmmmm ok

Laugesen:   ok”

122. From 8:00 pm that evening, within the space of three minutes, the applicant sent HL 37 emojis of various facial expressions including a winking and tongue-poking-out emoji and a face with love hearts for eyes. HL responded in a single text with 88 stop signs. They continued to exchange emojis and stop signs. In the meantime, the applicant continued to text the co-accused seeking advice. He also texted the other complainant, JL, telling her he loved her and asking if she missed him yet. It is to be recalled that at this time HL was in the home of a trusted family friend to spend time in Sydney during the school holidays.

123. At around 8:15 pm, the applicant became more explicit with HL:

“Biggers:   I wanna jump in tha bunker n hump like thumper [with six rabbit emojis]

HL:           [A large number of angry devil face emojis]

Biggers:   Wanna join me?

Biggers:   Haha [winking and tongue-poking-out emoji]

HL:          Nar only if lany gets to cuddle with us

Biggers:   oh she’d loved to

HL:          Really

Biggers:   Yep yep yep”

124. Finally, after several further persistent overtures, the applicant repeated the question “So you wanna jump in da bunker n hump like thumper?” to which HL responded with 40 stop sign emojis and the words “Lany help”.

125. The co-accused texted the applicant shortly afterwards saying “have said to her if she wants to she can and would be the best she has ever had …now it's up to her!!!”

126. At 9:06 pm the applicant texted HL “what's doin? [sic]” to which she responded “nm watching tv” (the letters “nm” presumably meaning “nothing much”).

127. The applicant replied “Come cuddles?” and sent a further 32 text messages (including many emojis of facial expressions and words inviting some response from HL). Finally, he repeated the question “Come cuddles?” HL did not respond to any of those texts. Seconds after the last text from the applicant to HL, the co-accused texted the applicant “Probs freaked cause i am here…” There followed an exchange between the two accused as to the likelihood of HL agreeing to have sexual intercourse with the applicant.

128. At around 9:23 pm the co-accused and the applicant had the following exchange:

“Laugesen:   We can't push it or may never happen

Biggers:   Yeah I know [crying face emoji]

Laugesen:   If it gonna happen it will happen when i am not around.

Biggers:   Ya reckon?”

129. The text exchanges continued in that vein, with the applicant trying to elicit a response from HL (“Come cuddles wif me?” [sic]) whilst also regularly texting the co-accused seeking advice as to how to progress the matter. The co-accused appears to have been in the apartment at that time, as indicated by a number of texts in which she explained that HL's responses were because “I’m here”.

130. Eventually, the co-accused texted the applicant at about 10:00 pm saying “i say just go and cuddle with her and c what happens” to which he responded “Hmmmmmm ok”.

131. Ten minutes later, the applicant texted HL saying “Only wanted to cuddle like we always do” and then “Nothing else”. The timing and the terms of those texts suggest she may have rejected an approach from him for “cuddles” at that time, but I accept that is speculative and I have not relied on that aspect of the evidence.

132. Exhibit SS indicates that, on 4 April 2016, the applicant’s phone was in a number of suburbs in the outreaches of Sydney. That is consistent with HL's evidence that, during her first few days away from Grafton, she and the applicant drove around Sydney in his truck. HL said that at some stage the three of them went shopping at Paddy’s Markets and the applicant bought her some clothing including two sets of matching bra and underpants. She said that, during those days, there was one day when she and the applicant were on their way back to the unit and he:

“grabbed [her] hand and put it over his clothing, onto his penis, and said: ‘See, baby girl, that’s how - this is how horny you make me feel’.”

133. HL said that, during those days, the applicant was “trying to manipulate [her] into having sex with him”. Counsel appearing for the co-accused at the trial made a submission, which the trial judge accepted at [162], that although HL had referred to being “manipulated”, the applicant was “simply expressing a desire to have sex with her, and did not use any cleverness or trickery” (judgment at [148], [162]). Whether or not the applicant was clever or tricky, in my assessment he was highly manipulative. With respect, the judge’s acceptance of that submission overlooked the persistence of his overtures, his position of authority over her and the way in which he was working in concert with the co-accused who, being the applicant’s girlfriend, might be expected to have made HL feel safe from anything untoward happening while she was there. The finding also overlooked the vulnerability and susceptibility of teenagers generally and this child in particular, in the circumstances in which she found herself.

134. Trial counsel further submitted that, whatever cognitive deficit HL may have had, there was no evidence that would permit a conclusion that she was more susceptible to persuasion than a person without her deficits: at [154] of the judgment. The trial judge also accepted that submission: at [162]. Again, with respect, there was an air of unreality about the proposition that a child of 16 with the developmental difficulties described in the evidence of HL’s father and grandmother had the capacity of an adult woman with no such deficit to resist the overtures of a man over twice her age who was persistently asking and arguing the case for sex while she was in his care. HL was, for all practical purposes (such as having somewhere to stay and getting back to Grafton) completely dependent on the applicant at that time.

135. The text exchanges throughout 4 April 2016 reflect a continuation of the applicant’s campaign to persuade HL to have sex with him and her increasingly firm negative responses. For example, at about 10:19 am that day, she responded to a series of compliments and sexual overtures with the following: “Ur way older than me nd besides Ur family so it would make me nd inbred and I don't want that so im putting my foot down nd saying no.” She followed those words with a large number of cross and stop sign emojis.

136. Undeterred, the applicant continued to argue his case (“Yes I’m family … but not by blood” and “it’s not against the law….you are legal…”). HL again responded in the clearest terms with multiple cross emojis and asking the applicant to “drop the hole conversation [sic]”.

137. The applicant then returned to his exchanges with the co-accused, texting “This week is going to be pure hell” to which the co-accused responded “I don't think it will be. She just has to get her head around the whole situation”. There was no further sexualised exchange between the applicant and HL that day.

138. That evening, HL’s aunt, Colleen, contacted HL because she saw on Facebook that she was in Sydney. Colleen wanted to see if they could catch up for dinner. That turned out to be impractical because Colleen lived too far away. However, their exchanges indicated that, after HL asked the applicant what suburb they were in (so she could tell Colleen), he became upset with her. HL wrote to Colleen on Facebook:

“…so apparently I didn’t ask uncle Phil about it so now im going home tomorrow after uncle Phil gets back from para or some other place

Nd now he has the shits nd asking me if I want to be around him

Nd if I could go with u it would be the most important thing but now I'm going home again with uncle Phil nd he is saying that I don't want to be here with him nd he's on the phone to his girlfriend so Yer that's what has happened in the past 10 minutes.”

139. The exchange concluded as follows:

“Colleen:   I'm confused.. So He is upset because I asked where you were on the off chance that we may be able to catch up?

HL:      Yer

Colleen:   Hmmm .. Well that's a bit odd don’t ya think?? Wth? Can I call you? Or will that cause more probs do u think?

HL:      It will cause more”

140. HL gave evidence about that exchange. She said that when she asked if she could see Aunty Colleen, the applicant said, “Why? Don’t you want to stay with me any more?” the applicant had, that very morning, been telling HL she was beautiful and begging to be allowed to show her “the greatest time of her life”. His petulant response that evening to her wanting to catch up with a relative for dinner can, in my view, only be regarded as manipulative.

141. HL also described an occasion when she asked if she could go back to Grafton and the applicant “had a spack attack” and started yelling at her (tcpt 160.35). That is consistent with a series of text messages sent while they were in Victoria on the way back from Melbourne on the morning of 7 April 2016 in which HL said she was missing her dad:

“HL to Biggers:	Im missing dad
HL to Biggers:	I need dad
Biggers to Laugesen:	You need to convince her to stay … not just till the weekend … but for the extra week … if not for ever … you want to keep me … you need to get a live in sex toy to stay until I decide you’ve been punished enough … I want it to be her … if can’t be her … then someone with same body … tight pussy … but I want her
Biggers to Laugesen:	This shit with you is why she wants to fucking go home
Biggers to Laugesen:	She just admitted to me the reason she wants to go home is because I’m angry at you and we are fighting because you cheated on and lied to me”

142. Later that morning she wrote:

“HL to Biggers: I don’t want to be here anymore because I’m missing dad nd Jake nd I just need to go home tomorrow afternoon”

143. HL described another occasion when the applicant asked her whether she had been telling people about them. She said “no”. He grabbed her phone while she was in the bathroom and when she came out he told her to unlock her phone and “delete the - the photos - the screenshots” (tcpt 149.18). She said the screenshots she was referring to were messages to a friend of hers called Brendan. The evidence in the trial included what might be considered a relatively innocent flirty exchange on Facebook between HL and Brendan (exhibit M). It is not clear from HL’s evidence whether those are the messages the applicant was asking her to delete but the fact that he was asking what she was saying to others about him and telling her what images she could have on her phone gives some indication of the degree of control he was starting to exercise over her.

144. Returning to the evening of 4 April 2016, shortly after midnight that night (that is, in the early minutes of Tuesday 5 April 2016), the applicant texted HL “The reason I’m not rushing to leave is because I’m worried about upsetting you if we leave now and sleep in the truck. Because I so badly want what I said before. To be the man you compare every man to …and I’m worried that if we sleep in the truck and I might do the wrong thing and upset you”. About half an hour later, he persisted “Only because of what I said in the last message … unless you want to go now and take the chance and see what happens in the truck” and then “So up to you”. HL did not reply to those messages.

143. Exhibit SS indicates that, by about 1:00 am on 5 April 2016, the applicant and HL were on the road. That is consistent with the evidence of HL, who said they left for Melbourne early in the morning. She said that, during the trip, they stopped at the side of the road across from a gas station and that they had trouble with the tray so they had to wait until a repairman came. She said it was night time by the time the repairman got there and so, after the repairman had fixed the problem and left, she and the applicant stayed where the truck was and that was when the sexual intercourse happened. In evidence-in-chief, she said:

“It was getting close to night, so we spent the night in the truck. I sat in the front seat. Then he said, ‘Come jump in the back and give me cuddles’. Then he took my clothes off and put his penis into my vagina, and started having sex with me. He pulled out before he ejaculated onto the bed beside me.” (tcpt 141.39)

146. After a short adjournment, she was taken back to that incident. She said when he first asked her to join him in the back of the truck for “cuddles” she said “No, I’m – no” (tcpt 144.34). He asked her again and she joined him in the back and she gave him cuddles and “he turned it into something more than cuddles” (tcpt 145.1). She said she felt scared and that after it had finished she “rolled over and went to sleep thinking that it didn’t happen, it wasn’t – I was just dreaming or something” (tcpt 145.33).

147. The Crown relied on that evidence to support count 3. It was the Crown case that the incident in count 3 was the first act of sexual intercourse between the applicant and HL.

148. HL’s evidence reflected a measure of confusion as to whether that was the first sexual act. At times she appeared to be saying that other acts of sexual intercourse occurred before the incident in the truck when it broke down. For example, she described an incident in the apartment when the applicant came out of his bedroom and called her into his room. She said he put her on the bed and started taking her clothes off and having sexual intercourse with her. She recalled that incident as having occurred “Before the trip to Melbourne” (tcpt 147.35). However, a careful analysis of the text messages in exhibit BB makes it clear that there was no sexual intercourse between HL and the applicant before the incident when the truck broke down, which was the first trip to Melbourne. That conclusion can be reached because the text messages provide a transparent account of the applicant’s persistent attempts to persuade HL to have sex with him (the detail of those texts is considered below). Accordingly, it seems likely that the incident HL described at the flat occurred after the first trip to Melbourne but before the second. The confusion may be explained by the fact that, on the first trip, they were initially headed for Parkes but were redirected to Melbourne, for reasons explained below.

149. HL’s evidence about the truck breaking down was supported by other evidence and can be placed in time by exhibit SS. The entries in that exhibit show that, from at least shortly before midday until around 8:00 pm on 5 April 2016, the truck was in the area of Lithgow, which is on the other side of the Blue Mountains from Sydney (and not on the way to Melbourne). At around 8:00 pm that day, the truck left the Lithgow area and headed to Victoria via a number of towns including Bathurst and Gundagai, crossing the border into Victoria in the early hours of Wednesday 6 April 2016.

150. That apparently circuitous route from Sydney to Melbourne via the Blue Mountains was explained by the evidence of Ammar Kejer, the owner of the truck company by which the applicant was employed. Mr Kejer gave evidence that the applicant was initially sent to Parkes to meet the train that does the Parkes to Perth run. However, the truck broke down about 15 minutes past Lithgow, at the turn-off to Mudgee. Mr Kejer had to travel from Sydney to repair the truck. When he arrived, he saw that there was a girl in the truck with the applicant. Mr Kejer said by the time he fixed the truck, it was nearly dark. That meant the applicant would miss the connection with the train at Parkes so they directed him to go to Melbourne, the train’s next stop, instead so as to make the connection to have the goods delivered to Perth. He said it would be necessary for the applicant to drive through the night to make the connection in time.

151. Mr Kejer said that, after he had repaired the truck, he made sure it was working and he watched them leave. That is inconsistent with HL’s evidence that they slept in the truck after the repairman had left but it is not necessary to resolve that inconsistency as it is not in dispute that they had sexual intercourse; the only issue is the issue of consent.

152. I am satisfied that the sexual intercourse in the truck on 5 April 2016 was the first act of sexual intercourse between HL and the applicant. That was the finding made by the trial judge at [156], notwithstanding her Honour’s understanding that both HL in her evidence and the applicant in his record of interview with police had said that the first time they had sex was at the apartment (I am not sure that is what HL was saying). The conclusion that the first act of sexual intercourse occurred in the truck on 5 April 2016 is supported by the following evidence.

153. The language of the applicant’s text sent shortly after midnight (that is, at the outset of 5 April 2016) indicates that they had not had sexual intercourse by that time. The language of the applicant’s texts at around 9:00 am on 5 April 2016 also indicates that they had not had sexual intercourse by that time (culminating in a further firm “no” text from HL to the applicant at 9:17 am that day).

154. HL described the act of sexual intercourse in the truck as having occurred after the truck had broken down. The truck appears to have spent most of the day of 5 April 2016 in or near the area of Lithgow in the State of New South Wales, commencing on the journey to Melbourne in the early evening.

155. The geographical nexus point was based on the submission that there were really only two possibilities as to where the sexual intercourse occurred – either soon after the truck was fixed, which was in Lithgow in the State of New South Wales, or in Melbourne the following morning (a text in exhibit BB sent by the applicant to the co-accused supports the inference that the applicant slept for about two hours after they arrived in Melbourne). The Crown case was that it happened at the place where they broke down, in Lithgow. The trial judge accepted the Crown’s position and indeed was satisfied beyond reasonable doubt that the offence was committed in New South Wales. There is no challenge to that finding and I respectfully adopt it.

156. There are no text exchanges between the applicant and HL after 11:00 am on 5 April 2016 until around 8:30 am on 6 April 2016 (by which time exhibit SS indicates they were in Victoria). At that time, the applicant sent HL a text message saying “God you’re beautiful. Such an amazing person. You really are. You deserve so much to be treated like a princess. Like my princess. Love you baby girl.” The difference in tone with earlier texts suggests that text was sent after they had had sexual intercourse.

157. The trial judge considered whether HL had sexual intercourse with the applicant because he abused his position of authority over her. On the strength of her conclusions that the applicant “did not engage in any cleverness or trickery” and that HL was “not more susceptible to persuasion than a person without her deficits”, her Honour concluded at [163] “I am not satisfied that the applicant’s position of authority was such as to eliminate HL’s capacity to freely choose, in the relevant sense.” For the reasons already explained, I do not agree with her Honour’s findings as to manipulation and susceptibility and I respectfully do not share her Honour’s view on the issue of abuse of authority. In my view, the applicant engaged in the most cynical abuse of his position as a trusted family friend charged with the care of HL during that fortnight and I have no doubt that, but for his abuse of that role, she would not have had sex with him.

158. The trial judge was satisfied beyond reasonable doubt that HL did not consent to the first act of sexual intercourse, being the allegation in count 3: at [169]. Her Honour was not satisfied beyond reasonable doubt that the applicant did not honestly believe that HL was consenting: at [173]. However, her Honour was satisfied beyond reasonable doubt that the applicant had no reasonable grounds for believing that HL consented. Accordingly, her Honour found count 3 proved: at [176].

159. The trial judge dealt with the remaining counts on a common basis. The text exchanges between the applicant and HL prompted her Honour to entertain a reasonable doubt as to whether HL was consenting to having sexual intercourse with the applicant “after 10 April 2016 at 12:03pm, by which time it is clear that the applicant has managed to persuade her that they loved each other and she should move to Sydney to live with him, and perhaps the co-accused” (at [183]).

160. As those counts are not in issue in the present appeal, it is not necessary to analyse the material underlying that conclusion. It is enough to note that the time and date identified by her Honour marked the beginning of an exchange of texts in which HL was speaking in terms that suggested she was considering moving to Sydney to live with the applicant and possibly the co-accused. The trial judge reasoned that, as to counts 4, 5, 6 and 7, the Crown could not exclude the reasonable possibility that the events in question occurred after 10 April 2016 at 12:03 pm and accordingly the Crown could not exclude a reasonable doubt as to the element of lack of consent in respect of those counts.

Ground 3: unreasonable verdict on count 3

161. As already explained, this ground contends that neither the element of lack of consent nor the element of absence of reasonable grounds for believing that HL consented can be proven beyond reasonable doubt.

Lack of consent

162. The applicant noted that, on the issue of lack of consent, the trial judge relied on three matters:

1. HL’s evidence that she said “No, no” when the applicant asked her to come into the back and give him cuddles and that when he asked a second time she gave him cuddles and he “turned it into something more than cuddles”;

2. HL's account to police of those events;

3. the text correspondence outlined above where HL repeatedly made it clear that she did not want to have sexual intercourse with the applicant.

163. The trial judge found at [168]:

“In respect of count 3, I am satisfied that HL did not say or do anything active that suggested she consented to sexual intercourse. I also accept that once she was in the back of the truck with Mr Biggers, she did not offer any resistance. However that is not the end of the matter. A person only consents to sexual intercourse if they freely and voluntarily agree to have sexual intercourse with another person. True it is that consent that is obtained after persuasion is still consent, provided that it is given freely and voluntarily.”

164. I have no doubt that the evidence I have summarised at length above amply supports the judge’s determination that the applicant was guilty of count 3. The principal argument in support of ground 3 was that the question of consent was informed by later messages sent by HL to the applicant the following day, when they were on the way back to Sydney from Melbourne. Starting at 2:53 pm on 6 April 2016, they had the following exchange:

“Biggers:   Can't wait till we stop tonight

HL:            Idk [I don’t know] if that’s what I want anymore

Biggers:   Oh really? Why?

HL:           Idk I just think that I made a really bad mistake Idk y but I feel like that

Biggers:   You haven’t baby girl. You really haven’t. The mistake will be not continuing.”

165. The applicant submitted that HL’s first text set out above was an admission that she had consented to having sexual intercourse with the applicant the previous night and that, by “admitting to having made a mistake”, the implication was that she was “complicit in what occurred”.

166. There was a further message on 7 April 2016 also relied upon as an admission that HL had consented to the earlier sex, where she said “Idk if I want to do that anymore because its not u its me don't take afenceive of it [scil: offence of it] ok”. That message cannot be read in isolation. It came after the messages in which she said she was missing her dad and wanted to go home. My reading of the whole of the relevant exchange has persuaded me that HL was using her best endeavours to fend off the applicant’s constant barrage of requests for sex. Her statement taking the blame on herself and imploring him not to take offence must be viewed in the context of the matters to which I have already referred; her youth and susceptibility, the position of authority he exercised over her and the extent to which he was manipulating her (with the co-accused’s assistance) during the whole period. HL’s assertion in evidence that she was being “groomed” during that period was, in my view, a fair assessment of the applicant’s conduct.

167. The applicant also relied on the text messages sent on 10 April 2016 in which HL indicated that she wanted to move to Sydney to live with him. He submitted that those messages should have informed the trial judge’s decision about whether HL consented to the sexual encounter alleged in count 3. As already noted, the trial judge did have regard to those messages and indeed relied on them as the primary basis for finding the applicant not guilty on the remaining counts. I am not persuaded that those text messages inform the question of consent to sexual intercourse on the first occasion on which it occurred.

168. Finally, the applicant relied on the fact that the trial judge apparently rejected HL as a reliable witness. Specifically, her Honour accepted a submission put on behalf of the applicant that HL's “view now that she never agreed to sexual intercourse is unreliable, having regard to what we know about the way she was questioned by police on 15 April 2016 and what she said to Ms Laska on 28 April 2016, to the effect that she was talked into sleeping with him”: at [164].

169. The argument was that, if the trial judge found HL to be unreliable on the question of consent generally, that undermined her finding as to a lack of consent in respect of count 3 given that two of the three matters upon which the trial judge relied (set out above) were also HL’s account of what occurred. The submission adopts the fallacy that a trier of fact is obliged to accept or reject the whole of a witness’s evidence. The finding that HL’s evidence as to consent to later acts was unreliable was made within the rubric of her Honour’s acceptance that, as to the first act of intercourse, there was no consent. That is a perfectly logical analysis. I have no doubt that HL did not consent to the act in count 3.

Absence of reasonable grounds for believing that HL consented

170. As already noted, the trial judge was not satisfied that the applicant did not honestly believe that HL was consenting but was satisfied that he had no reasonable grounds for believing she consented. In reaching her conclusion as to the applicant’s actual belief, her Honour had regard to the following text exchanges between the applicant and the co-accused on 5 April 2015 in the morning:

“Biggers:   She admitted wants to have someone new and admitted she does want to with me but thinks doing it makes her the same as her mum and same as [JL]

Laugesen:   And what did u say??

Biggers:   I told her what she wants to do is nothing like what her mother has done and nothing like what [JL] does cause she just wants to play with one guy a few times and then leave it at that

Laugesen:   And what did she say to that…

Biggers:   And go back and get a happy relationship with him again … and that everyone goes through patches that they want to get fucked stupid by someone else a few times and then leave it there

Biggers:   Jake….. the other guy was just an option mainly because he was there not really for anything more.

Biggers:   Just figured it out… she started wanting to sleep with someone else when she came to bris with me … that’s why she went different. Cause it was me she wanted to sleep with

Laugesen:    And u did not believe me”

171. On the strength of that material, the trial judge was not satisfied beyond reasonable doubt that the applicant actually knew that HL was not consenting. Her Honour gave two reasons for that conclusion at [172]:

1. although the text messages misrepresented what HL had been saying, her Honour accepted that is what the applicant thought;

2. HL later did get into the back of the truck after the applicant asked for cuddles a second time and gave him cuddles.

172. Her Honour explained her conclusion that the applicant had no reasonable ground for believing HL was consenting at [175] as follows:

“The grounds for his belief were a misguided view of what HL had said in text messages she sent on 5 April 2015, and the fact that she allowed him to cuddle her. However, the circumstances were that there was nowhere else for her to sleep, and she had told him repeatedly over the preceding three days that she did not want to have sexual intercourse with him.”

173. In the hearing in this Court, the applicant submitted that the judge was wrong to conclude that the text exchange between the applicant and the co-accused set out above misrepresented HL’s position. It is clear enough that her Honour was comparing that exchange with earlier text exchanges with the applicant. The applicant submitted that it could not be concluded that the applicant had misunderstood HL’s position because there may have been conversation concerning the issue of consent in addition to the texts. That is entirely speculative.

174. The applicant further submitted that the earlier texts up until 5 April 2016 clearly indicate that HL was capable of communicating a lack of consent and that the applicant had made his intentions to have sex with her abundantly clear. I pause to note they HL had made her rejection of him equally clear. The applicant further submitted that the complainant’s own evidence was that she initially said “no” to cuddles but then agreed to them and offered no resistance to the applicant removing her clothing. It was submitted that it was reasonable for the applicant to have believed that “he had, through a very determined campaign, succeeded in obtaining HL’s consent to sexual intercourse”.

175. The submission considers the issue of consent from the perspective of the applicant, whereas the test is objective. On the strength of the evidence I have summarised, I am not persuaded that there was any reasonable basis on which the applicant could have believed HL was giving her consent freely and voluntarily to have sex with him. I would dismiss ground 3.

Orders

176. The appeal was out of time but the delay was adequately explained. All three grounds raise questions of mixed law and fact and require leave pursuant to s 5(1)(b) of the Criminal Appeal Act which should, in my view, be granted owing to the seriousness of the offences, the complexity of the facts and the general importance of the issue raised by ground 1.

177. For those reasons, I propose the following orders:

1. Extend the time within which the appeal may be commenced to 19 September 2019.

2. Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), grant leave to appeal.

3. Dismiss the appeal.

178. ADAMSON J: I have had the considerable benefit of reading in draft the reasons of McCallum JA and agree with the orders which her Honour proposes. Because of her Honour’s summary of the Crown case and the trial judge’s findings, which I gratefully adopt, I am able to express the reasons for my agreement with the proposed orders briefly.

Ground 1: the geographical nexus in respect of count 1

179. As to ground 1, although it would have been open to the applicant’s trial counsel to put in issue the geographical nexus in respect of count 1, I am satisfied that there were objective tactical advantages for the applicant not to do so. There was, in any event, considerable evidence consistent with the offence having been committed in New South Wales. In these circumstances, ground 1 has not been made out.

Grounds 2 and 3: alleged unreasonable verdicts on counts 1 and 3

180. As to ground 2, I have considered the evidence at the trial and her Honour’s reasons for her findings of guilt in respect of counts 1 and her findings that count 2 had not been proved to the requisite standard. I discern nothing about the evidence of JL, taken by itself or in the context of the whole Crown case, which leads me to entertain a doubt about the applicant’s guilt, much less one that the primary judge might not have been able to resolve, having regard to her Honour’s advantage of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence it was open to her Honour to be satisfied of the applicant’s guilt beyond reasonable doubt.

181. I have also considered her Honour’s reasons for not finding that count 2 was established to the requisite standard. It does not follow from the finding of not guilty in respect of ground 2, that her Honour did not accept JL’s evidence. A tribunal of fact is entitled to accept parts of a witness’s evidence and reject other parts of it. Further, it is one thing to accept a witness’s evidence but it is another to be satisfied of an element of the offence beyond reasonable doubt based on that witness’s evidence. I note that her Honour’s findings with respect to count 2 indicate that her Honour substantially accepted JL’s evidence. Her Honour expressly confirmed that she had considered whether her finding of not guilty with respect to count 2 affected her finding of guilt with respect to count 1. In these circumstances, I am not persuaded that ground 2 has been made out.

182. As to ground 3, I have considered the evidence at the trial and her Honour’s reasons for the finding of guilt. I discern nothing about the evidence of HL, taken by itself or in the context of the whole Crown case, which leads me to entertain a doubt about the applicant’s guilt, much less one that the trial judge might not have been able to resolve, having regard to her Honour’s advantage of seeing and hearing the witnesses. I am satisfied that on the whole of the evidence it was open to her Honour to be satisfied of the applicant’s guilt of count 3 beyond reasonable doubt.

183. BEECH-JONES J: The background to the appeal is set out in the judgment of McCallum JA. Given her Honour’s summary of the Crown case and the matters raised on appeal I can express my reasons for agreeing with her Honour’s proposed orders briefly.

Ground 1: Alleged Incompetence of Counsel

184. Ground 1 of the appeal alleges incompetence of counsel in not putting in contest the geographical nexus between the offence and the State of New South Wales. The principles concerning a ground of appeal framed in those terms are set out in the passage from Alkhair v R [2016] NSWCCA 4 at [31] (“Alkhair”) extracted in the judgment of McCallum JA at [58].

185. I agree with her Honour that there was a rational explanation for counsel’s approach, namely, that to invite closer scrutiny of the timeline of events would have only enhanced JL’s account, in that it would have strongly suggested that her account of an indecent assault occurring during daylight hours at the time of a meal break occurred at Albury on the return leg of the first trip from Melbourne to Sydney.

186. As this conclusion is of some significance to ground 2, I will elaborate. The applicant’s mobile phone records that were Exhibit SS indicated that he stopped at Albury at around 6pm on 29 March 2016 on the return leg from Melbourne for around an hour. There is no reason to doubt that it was still “light” at that time in late March. JL’s evidence that she believed that the incident occurred between Yass and Goulburn was potentially explicable on the basis that she most likely saw those locations signposted during her journey. JL’s evidence was that prior to these events she had never travelled in a truck before. Whether JL had ever travelled to Melbourne by road before was the not the subject of evidence.

187. In these circumstances, had counsel for the applicant invited the trial judge to address the jurisdictional issue then that would have simply invited a response from the Crown that JL was mistaken about the indecent assault occurring between Yass and Goulburn. In turn that would, or at least could, have invited focus upon a different location of the assault which may have ultimately removed an anomaly in her evidence which potentially affected her credibility and instead reinforced it. Such an inquiry would commence with the SMS messages passing between the applicant and the co-accused on the evening of 28 March 2016, in which the co-accused effectively granted him permission to pursue JL sexually. The messages they exchanged for the rest of that night and the following day concerned that topic. Those messages support a narrative of the applicant working himself up to the point of attempting initial sexual contact with JL on the return leg of the first trip to Melbourne. The location that best accords with JL’s evidence concerning that attempt is Albury. As noted by McCallum JA (at [107]), JL’s evidence about the SMS messages between her and the applicant about her wearing a “high vis shirt” at Albury were not inconsistent with the indecent assault having occurred there.

188. It follows that the “impugned conduct” of counsel for the applicant at his trial is “capable of being rationally explained” (Alkhair at [31]). Further, to the extent that it may be relevant to a determination of whether ultimately a miscarriage of justice has been demonstrated, I am satisfied to the relevant standard that the evidence demonstrated that the incident the subject of ground 1 took place in New South Wales, namely, Albury.

Ground 2: Unreasonable Verdict on Count 1

189. As stated by McCallum JA, a significant aspect of the submissions on ground 2 was an attempt to deploy the trial judge’s findings in relation to count 2 as a basis for undermining the verdict on count 1. In light of that contention it is appropriate to address the trial judge’s reasoning in relation to both counts.

190. The critical findings of the trial in relation to count 1 are the following:

“130   Although JL said that she thought the events, the subject of count 1, occurred when it was daylight and the truck was between Yass and Goulburn on its way back from Melbourne, which having regard to Exhibit SS, cannot be correct, I accept her account that on the way back from Melbourne, Mr Biggers explained to her that ‘[co-accused] had cheated on him, that he was looking for a familiar person to have sex with, he asked her if she was willing to have sex with him to make the score even, she said no, and when she and the accused were walking back to the truck after a stop, Mr Biggers turned to face her and gave her a hug, she pulled away and he grabbed her breast on the outside of her clothing and held it for a few seconds. She stepped back and said, “Can you not do that”.

131   I do so because;

(1)   I found JL quite a straightforward witness,

(2)   it is consistent with what the tendency evidence reveals is Mr Biggers modus operandi, and

(3)   it is consistent with the text communication between Ms Laugesen and JL between 20:53 and 20:59 on 28 March 2016, which I accept occurred at Mr Biggers behest.”

191. Having made this finding, the trial judge then rejected the applicant’s account in his interview that he ever “touched JL sexually”. Based on the above findings, the trial judge found each of the elements of the charge of indecent assault proven.

192. In relation to count 2 the trial judge reasoned as follows:

“135   In respect of count 2, I consider it is likely that sexual intercourse occurred between Mr Biggers and JL, however I am not satisfied beyond reasonable doubt that it occurred in the way JL described, having regard to Exhibit SS, and her failure to say anything to anyone about what she alleges occurred at the time she knew HL was accompanying the two accused to Sydney.

136   Although the Crown pointed out that;

(1)   JL gave evidence that she said, “I don’t want this, get off me”, when she realised Mr Biggers was having sex with her, and

(2)   the text messages on at least 28 March 2016 suggest that she rebuffed [co-accused’s] attempt to interest her in having sex with Mr Biggers,

as I am;

(1)   not confident that the events took place in quite the way JL said they did, and

(2)   not satisfied that Mr Biggers knew that JL was taking sleeping medication during the time she was in Sydney,

I am unable to find beyond reasonable doubt that Mr Biggers had sexual intercourse with JL without her consent, knowing that she was not consenting.”

193. With respect to the trial judge, the precise findings that her Honour made in this part of her reasons concerning count 2 are very unclear. As I understand this passage, although her Honour found that it was “likely” that the applicant had sexual intercourse with JL, her Honour was only satisfied of that fact on the balance of probabilities. Her Honour does not appear to have been satisfied beyond reasonable doubt that they had sexual intercourse such that no issue arose as to whether it was non-consensual.

194. In addressing count 1, the trial judge found that JL was a “straightforward witness”. During the appeal, counsel for the applicant queried what that finding meant. In my view, it is clearly a reference to JL being an honest witness. This was a demeanour‑based assessment that reflects the advantage enjoyed by the trial judge in observing JL give evidence that was not enjoyed by this Court.

195. Further, nothing that her Honour found in relation to count 2 was inconsistent with a finding that JL was an honest witness. Instead, the difference in the verdicts between count 1 and count 2 simply reflect a different assessment by the trial judge of whether her account was sufficiently reliable to support a finding of guilt beyond reasonable doubt (Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [15]). Her Honour undertook an assessment of the reliability of her evidence, as opposed to its truthfulness, by reference to the other evidence at the trial and the logic of events.

196. Thus, in relation to count 1, the trial judge found that JL’s version was consistent with a course of events that commenced from the SMS communications described above being, in effect, the permission granted by the co‑accused to the applicant to pursue JL. Her Honour also relied on what the “tendency evidence reveals [was the applicant’s] modus operandi”. This is a reference to an earlier finding by the trial judge that the applicant had a “sexual interest in young girls”, a “tendency to act on that interest” and a “tendency to have a disregard for the question of consent, at least with respect to indecent touching”. None of those findings were challenged on appeal.

197. In relation to count 2, the trial judge did not refer to any tendency evidence as supporting the contention that the applicant had sexual intercourse with JL without her consent. This was possibly because her Honour had earlier found that it had not been demonstrated that the applicant had a tendency “to have a disregard for the question of consent to sexual intercourse” (as opposed to indecent assault). Otherwise, the trial judge was not satisfied beyond reasonable doubt of the applicant’s guilt on count 2 because of what Exhibit SS revealed about the timing of SMS messages and the occasion when count 2 was said to have occurred. In particular, the trial judge was concerned about JL’s failure to warn her younger sister, HL, that she, JL, had been raped by the applicant.

198. McCallum JA has raised a number of concerns about aspects of the reasoning of the trial judge in relation to count 2. While the approach of assessing the reliability of HL’s account by reference to the other evidence and the logic of events is entirely orthodox, I share some of McCallum JA’s misgivings about the matters said to justify not being satisfied of the applicant’s guilt on count 2. However, it is not necessary to address whether, in determining an appeal from a conviction in a judge alone trial on the basis that it was not supported by the evidence, it is permissible to adopt reasoning and factual findings that are inconsistent with the trial judge’s acquittal of an applicant on other counts. Instead, the challenge to the conviction on count 1 can be addressed by accepting the acquittal on count 2 and the entirety of the reasoning and findings that support it.

199. Having reviewed the evidence I agree with the trial judge’s assessment that JL was a “straightforward witness”, that is, an honest witness. In any event, that aspect of her Honour’s judgment derived from the “advantage in seeing and hearing the evidence” (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; “Filippou” at [12] quoting M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 per Mason CJ, Deane, Dawson and Toohey JJ). Further, JL’s description of the applicant’s conduct that constitutes count 1 is consistent with and supported by the tendency evidence and is very much supported by the chronology of events. The only matter of substance that potentially casts doubt on JL’s evidence is the matter noted by the trial judge, namely, that having regard to Exhibit SS, it is unlikely that the incident occurred between Yass and Goulburn as JL stated. However, for the reasons given in relation to ground 1, this is not a matter that has led me to conclude that “there is a significant possibility that an innocent person has been convicted” of count 1 (Filippou id). Otherwise, for the reasons just explained, neither the applicant’s acquittal on count 2 nor the reasons for that acquittal warrant that conclusion either.

200. I would reject ground 2 of the appeal.

Ground 3: Unreasonable Verdict on Count 3

201. I agree with the analysis of McCallum JA at [161] to [175] in relation to ground 3.

202. I agree with the orders proposed by McCallum JA.

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Decision last updated: 13 March 2020