Crosland v The Queen

[2019] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Crosland v R [2019] NSWCCA 175
Hearing dates:	14 June 2019
Decision date:	02 August 2019
Before:	Leeming JA at [1] Davies J at [2] Button J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIME – application for leave to appeal against conviction – where indictment contained 7 counts alleging sexual offences (sexual intercourse without consent and indecent assault) – where verdicts of guilty returned after trial by jury in relation to counts 2-6 – where applicant acquitted of counts 1 and 7 – whether verdicts are inconsistent – whether verdicts of guilty are generally unreasonable or unable to be supported – discussion of the evidence given at trial – analysis of points of rational differentiation between acquittal counts and conviction counts – verdicts not irreconcilable – application of M v The Queen (1994) 181 CLR 487 – verdicts not generally unreasonable or unable to be supported – leave to appeal granted and appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5 Crimes Act 1900 (NSW), ss 61I and 61L Evidence Act 1995 (NSW), s 38
Cases Cited:	Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 MFA v R (2002) 213 CLR 606; [2002] HCA 53 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Phillips v R (2006) 225 CLR 303; [2006] HCA 4
Category:	Principal judgment
Parties:	Phillip Crosland (Applicant) Regina (Respondent)
Representation:	Counsel: S Healy (Applicant) G Newton (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/92279
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 September 2017 Before: Payne DCJ File Number(s): 2016/92279

Judgment

1. LEEMING JA: I have had the advantage of reading Button J's judgment in draft. I agree with his Honour's reasons and the orders he proposes.

2. DAVIES J: Having examined the evidence, I am satisfied that it was open to the jury to convict the applicant, and to do so notwithstanding the acquittals on counts 1 and 7.  I agree with Button J and the reasons he gives.

3. BUTTON J:

Introduction

4. Mr Phillip Crosland (the applicant) seeks leave to appeal pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) against his convictions on three counts of sexual intercourse without consent, contrary to s 61l of the Crimes Act 1900 (NSW), and two counts of assault with an act of indecency, contrary to s 61L of the Crimes Act. All offences were averred to have occurred on 25 January 2015. The convictions were entered after a trial by jury before her Honour Judge Payne in the District Court at Tamworth that commenced on 1 June 2017. There is no application for leave to appeal against the aggregate sentence subsequently imposed.

5. The single ground of appeal is that the convictions on the counts upon which verdicts of guilty were returned are unreasonable or unable to be supported. That in turn has two bases: first, by way of a general analysis of the evidence; and secondly, because of the alleged inconsistency between the verdict on those counts (counts 2, 3, 4, 5 and 6) and verdicts of acquittal on two of the counts on the indictment, counts 1 and 7.

6. Because of the nature of the proposed ground, it is necessary for me to turn now to a detailed conspectus of the entirety of the evidence. That will include the evidence in support of the acquittal counts; of course, I approach those on the basis that the applicant is presumed innocent of them.

Summary of evidence

7. In the following summary of the evidence in the trial, for the convenience of the reader and without meaning any disrespect, I shall refer to all members of the family of the applicant simply by their first names. I shall separately adopt a pseudonym for the complainant and, bearing in mind that the relevant events occurred in a regional centre, all persons through whom she could be identified. Finally, I shall refer to a member of the family of the applicant who is a child by a pseudonym as well.

Evidence of the complainant

8. The complainant (whom I shall call Connie) was a young woman of 18 years of age when she gave evidence in June 2017. Having been born in October 1998, she was aged 16 years and 3 months in January 2015. She had known the sister of the accused, Chantelle, since they had both been in primary school. Chantelle was the best friend of Connie, and the latter would often stay over at the home of the former at an address in Tamworth. Their habit was to sleep together in the bed of Chantelle in her bedroom.

9. Chantelle had an older brother named Todd. He also lived at the address. Chantelle had another brother, the applicant, who was not living at the address as at January 2015. Connie did not know him very well, the two having met only about three times. He was older than Chantelle. The applicant had a daughter (whom I shall call Babette) who was about one year old as at January 2015.

10. On Saturday 24 January 2015, the complainant arrived at the home of Chantelle at about 1 pm, with the intention of staying the night. Chantelle arrived with her mother, Peggy, and the baby, Babette, a short time later. The two young women sat in the bedroom of Chantelle, using their phones and watching movies. In that bedroom was a double or queen bed, and also a mattress on the floor for Babette.

11. Connie saw the applicant and Todd that afternoon, and was told that they were going to a hotel for drinks.

12. Connie and Chantelle took Babette to a fast food restaurant for dinner. After they returned, Chantelle bathed Babette and Connie fell asleep in Chantelle’s room. At some point Connie woke up and heard the voices of Todd and the applicant from the lounge room. She went into the lounge room and played on her phone. Chantelle was also present. Chantelle and Connie cooked dinner in the kitchen for the applicant and Todd, and provided it to them in the shed in the rear of the premises.

13. The shed was in the backyard of the block, down the back near the rear fence. The complainant had been there before that evening. It was set up with a bed, a chair, a table with a television on it, and a games console.

14. After delivering the dinner to the shed, Connie and Chantelle returned to the home, and sat on the lounge using their phones.

15. Later, Connie showered and put on blue pyjama shorts with a white singlet and a purple and white polo shirt. She was wearing underwear but no bra.

16. The complainant and Chantelle had a conversation about returning to the shed, they having been invited by the applicant and Todd to do so.

17. They returned to the shed at about 9:30 pm. They sat on the bed and watched a movie. The applicant and Todd were sitting on seats. The applicant repeatedly asked Connie to sit on the stool beside him, but she declined. The applicant referred to Connie affectionately, and his sister Chantelle remonstrated with him, to the effect that he should only use such terms with Stephanie, his partner.

18. Whilst Connie was bent over activating a DVD, the applicant smacked her backside. Chantelle remonstrated with him, but he responded “Why? There’s plenty of her”. The complainant spoke of the awkwardness of the situation. Connie noticed that the applicant and Todd were drinking beer.

19. The young women returned to the main house at about 1:30 am. They went into the bedroom of Chantelle. Babette was awake, and Chantelle went to get a bottle for her. Chantelle asked Connie whether she intended to return to the shed, and she replied in the negative, saying that she was visiting her friend, Chantelle, not the brothers of her friend.

20. Eventually, Babette and Chantelle both fell asleep on the mattress on the floor. Connie was lying on the bed listening to music through earphones. At some stage the applicant came into the bedroom to check on Babette, and lay down beside her (that is, Babette). He left again.

21. Sometime after that, Connie remained lying on the bed with her earphones in. The applicant came to the door and turned the lights on. The complainant removed one of her earphones. The applicant told her that he had lost his phone, and asked her to come and help him find it. He said that he thought that he had lost it somewhere in the shed. He left the room and Connie followed him. By that stage she was wearing a singlet, with the same blue shorts into which she had changed after her earlier shower.

Count 1: sexual intercourse without consent; in the shed; verdict of not guilty

22. The applicant and Connie entered the shed and looked for the phone. Connie found it sitting on top of the computer games console. They were alone in the shed. The applicant lay down on the bed and the complainant was standing near the Xbox. He pulled her onto the bed by her waist. The applicant removed his jeans and positioned himself on his back on the bed. Connie was on top of him at that point. When the applicant pulled his jeans down, Connie rolled off him, and he pulled his boxer shorts down. She gave evidence that he “asked me to suck him off”. She declined, and the applicant pushed the back of her head towards his penis. The applicant said, according to the complainant, “I told you what I fucking wanted, now just do it”. His erect penis entered her mouth for a short time. The oral penetration ended when she pulled her head away.

Count 2: sexual intercourse without consent; in the shed; verdict of guilty

23. The applicant pulled the complainant down onto the bed again. He held her hands above her head. She was telling the applicant to get off her. He started to pull her pants down whilst she was lying on her back and he was on top of her. He inserted his finger in her vagina. She said “Can you stop” in a loud and distressed voice. After a short time, the applicant removed his finger from her vagina.

Count 3: sexual intercourse without consent; in the shed; verdict of guilty

24. The applicant then got on top of Connie and inserted his penis into her vagina. At the time, she was screaming, and he told her to “shut up”. She could not say how long the penetration lasted. He ejaculated inside her. The applicant was holding her arms above her head. She was frightened and concerned about what the applicant might do.

25. After he ejaculated, Connie kneed him, which caused him to get off her. She pulled up her pants, ran to the house, and entered a bathroom which contained a toilet. After that, she returned to the bedroom of Chantelle.

Count 4: indecent assault; in the shed; verdict of guilty

26. Before the complainant left the bed, the applicant began to kiss her breasts, and, according to the trial transcript, “twisted” one of her breasts. When asked to elaborate, the complainant said that the applicant had “pulled [her] singlet up before [she] got off the bed and started to kiss them.” (tcpt, 2 June 2017, 55(10)-55(11))

After the offences in the shed

27. When Connie re-entered the bedroom, Chantelle was awake. Connie did not tell her friend what had happened because she was embarrassed. Chantelle was still with Babette on the mattress on the floor. Chantelle went to get the baby a bottle.

28. About half an hour after the events in the shed, Connie saw the applicant again in Chantelle’s room. He had come to check on Babette. Babette and Chantelle were both awake when the applicant entered the room. At the time, Connie was on Chantelle’s bed with her earphones inserted.

Count 5: indecent assault; in the bedroom; verdict of guilty

29. The applicant lay on the bed with her. There was some light in the room from the phone of Connie. Chantelle was awake, but the baby, Babette, was asleep.

30. Chantelle asked the applicant what he was doing, and he said that he was “going to bed”. Chantelle suggested that he lie on the mattress on the floor with his daughter, and that she would lie on the bed with her female friend. The applicant said “No. It’s okay. I don’t bite much.”

31. Some time later, Connie was lying on her side on the bed, and had put her music on pause. The applicant began to put his hand around Connie and up her singlet. She knew that Chantelle was asleep because, with the music paused, Connie could hear Chantelle snoring. The baby was also asleep.

32. The applicant’s hand went up the singlet of Connie and onto her breast. She grabbed his hand and pushed it back towards him. He then put his hand down on her leg, and touched her vagina. He pulled the earphone from her right ear, causing it to bleed. Connie told him to leave her alone.

Count 6: sexual intercourse without consent; in the bedroom; verdict of guilty

33. The applicant pulled Connie onto her back by grabbing her arm while she was on her side. Whilst she was on the bed and the applicant was next to her, Connie saw Todd walk past the bedroom doorway. She was able to do so because the bedroom door was open a little. Todd put his head in through the doorway and said “Oh. I’d better leave”. Due to fear, the complainant said nothing to Todd.

34. The applicant inserted his finger in Connie’s vagina. He said nothing. Connie told him to leave her alone. He responded “You put out before. Why not now? Chantelle is asleep”. The complainant responded “Fuck off”. The penetration of her vagina with his finger caused her pain. He eventually brought the penetration to an end. Connie moved his hand away by grabbing his wrist.

Count 7: sexual intercourse without consent; in the bedroom; verdict of not guilty

35. The applicant then inserted his penis in the vagina of Connie. He used his right hand to hold her arms above her head, as before in the shed. Connie gave evidence that the penetration hurt her and she was crying.

36. The applicant removed his penis and ejaculated onto her shorts and in the vicinity of her vagina. He angrily said to Connie that “I better keep it a secret or that he will kill me”. The complainant responded that she would tell Chantelle. The applicant spoke of the complainant denying that anything had happened if Todd asked. He then left the bedroom.

37. The complainant lay in the bed, reinserted her earphones, listened to music, and cried. At some point she fell asleep. Chantelle was still on the mattress with the baby. Both of them were still asleep.

The next day

38. The following morning, Sunday 25 January 2019, Connie awoke at about 9:30 am. At 9:43 am, she sent a text message to her mother (whom I shall call Martha) that included a request that she be picked up by her mother’s father (her grandfather, whom I shall call Gary). It included an emoji of a crying face, and then read, “I just want to come home”. In response to a message from her mother as to whether Connie wanted Martha to ask Gary to come and pick Connie up, she replied in the affirmative. When told that she would be picked up in around one hour, Connie replied “Okay, thank you”, followed by a series of love hearts.

39. At 10:55 am, the complainant sent a message to Martha saying that she would wait out the front, and that she was “fighting with Chantelle”. Gary picked her up at about 11 or 11:30 am. She said nothing to him of what had happened because she was not particularly close to him.

40. The complainant and Martha also spoke on the phone twice that morning. Connie could not recall when it was that the first call occurred, but she recalled telling her mother that she wished to come home without giving a reason. The second conversation was from Gary’s car whilst he was in a service station. The complainant said only that she wanted to come home because the brother of Chantelle had gotten into bed with her.

41. Gary drove Connie to her sister’s house in Tamworth. The sister (whom I shall call Susan) and her fiancé (whom I shall call Frank) were present. Frank noted that Connie was “really shaken up and really anxious”. She was on the lounge crying. She said to Frank, “I hate the fact that drunken men think that they can take advantage of me”. She said that Chantelle’s brother had had sex with her, but did not provide any further details. Connie did not say anything to her sister Susan about what had occurred. Connie inferred that her mother – who had been out the front of the home speaking to Susan – had overheard what Connie had said to Frank, because Martha spoke of going to a police station.

42. Gary drove Connie to the police station, along with Martha, Susan and Frank.

43. Connie was subsequently examined by a doctor at a hospital with a sexual assault counsellor present. She provided a history of what happened. She had bite marks on her breast, and her ear was sore.

44. Connie knew the partner of the applicant, Stephanie Frost. She could not recall having a conversation with that woman a few days after the incident, but recalled speaking to her a few times months later.

Cross-examination of the complainant

45. In cross-examination, the complainant denied knowing a number of women mentioned by defence counsel. She also denied ever using the name “Amy Longyard” in any context. She denied sending a series of digital messages to Chantelle that were transcribed on a document that she was shown. She was also shown an image, and denied using it on social media. She was shown a further document, and said that she neither recognised it, nor had sent any messages contained in it to the applicant.

46. Connie agreed that she and Ms Frost had not got along. She denied bumping into Ms Frost and her daughter on a street of Tamworth on Tuesday, 27 January 2015, and saying something along the lines of “You’re nothing but a slut, and I wanted Phil to have sex with me. I don’t know why he didn’t want to.” Her position was that she could not have been on a street in Tamworth on that day, because she had been hospitalised after a suicide attempt. Although she accepted that her memory was unclear of things after 25 January, she claimed to have a clear memory of that day.

47. She agreed with a layout of the home of the applicant put to her by defence counsel. She also agreed that on 25 January, the brother, Todd, the mother of Chantelle, Peggy, and Chantelle’s grandmother were all sleeping in the home.

48. She agreed that her evidence was that she had gone to the shed with Chantelle at about 9:30 pm and stayed there until about 1:30 am, and was therefore in the shed for four hours with Chantelle, Todd, and the applicant. She agreed that, during that time, Chantelle never left. She agreed that she chatted to the applicant and Todd and was watching movies with them. She said that the applicant was paying her attention, was speaking to her in affectionate terms, and smacked or patted her backside. She denied reciprocating by way of showing any affection to him or by sitting on his lap to take photos of herself on her phone.

49. She denied that she stayed behind in the shed for a few minutes after Chantelle departed, and kissed the applicant on the mouth during that time.

50. She denied that, when back in the bedroom with Chantelle, she asked Chantelle whether she would be angry if she (Connie) returned to the shed for a while.

51. Her position was that she had felt uncomfortable about being around the applicant, because his flirting was unwelcome. The complainant agreed that there was nothing in her statement to police about it being the complainant who was the one who wished to leave the shed at about 1:30 am. She confirmed that, at the time of her first visit to the shed, and thereafter, she had been wearing a singlet and blue pyjama shorts.

52. She was unable to provide an estimate of how much time passed between the departure of the two of them from the shed and the appearance of the applicant in the bedroom claiming that he needed help to find his lost mobile phone.

53. She agreed that she had returned to the shed in her pyjamas in the middle of the night with a man who made her feel uncomfortable. She also agreed that she had not woken Chantelle before doing so. She denied the proposition that, when she returned to the shed, she had done so because she knew that something sexual would occur, and wanted it to happen.

45. She was cross-examined about the physical details of the sexual assaults, and denied that some of it would be a “difficult manoeuvre” on the part of the applicant.

46. She agreed that she told the doctor the following day that the applicant had bitten her on her right nipple, with the result that it bled.

47. On her return to the home after having been in the shed the second time, she did not wake the sleeping Peggy, nor speak to Chantelle, nor call the police, despite Chantelle being awake when Connie returned to the bedroom.

48. She denied that she approached the applicant sexually in the shed. She also denied that his brother, Todd, walked into the shed during her second visit and saw her and the applicant engaging in consensual intimate contact on the bed. She denied the following propositions: that she consented to digital/vaginal and penile/vaginal penetration; that the applicant did not force penile/oral penetration upon her; and that he did not kiss or bite her breasts.

49. She agreed that she had had an opportunity to tell Chantelle that something “horrible” had happened. She denied that any embarrassment was caused to her as a result of having been seen by Todd having consensual sexual contact with the applicant on the bed in the shed.

50. She denied the proposition that the applicant did not touch her at any stage whilst she was in the bed in the bedroom within the house. She said that her clothes had been removed by the applicant in the bedroom, and that she had said nothing about that process in her evidence-in-chief. She said that, when the applicant took her underpants and blue shorts off in the bedroom, she fought him. She agreed that it was a violent struggle and that she was kicking, and screaming, albeit “not very loud, obviously”, but was not shouting at the applicant. She did not see Todd from the time she went to bed the first time until she saw him walk by and put his head in the bedroom door in the house. She did not fall asleep between coming back from the shed the second time and the applicant coming into the room. She did not contact her own mother in any way between those two events.

51. She disagreed that the applicant came into the bedroom after the two of them had been “caught” by Todd in the shed, and said to her words along the lines of “You are a tease. Why don’t you finish what you started?” She rejected the proposition that there was no sexual contact between herself and the applicant in the bedroom in the house. She said that she did not see the applicant ejaculate over her blue shorts and over her body, but that she felt it.

52. She agreed that she had spoken to the police of an extremely violent attack in the bedroom during which, at some point, she was screaming, kicking and striking the applicant. Nevertheless, she did not scream out for help to Chantelle or her mother, Peggy. Nor did she seek to wake them after the sexual assaults had concluded. She merely went to sleep, without calling the police, despite the departure of the applicant from the room.

53. The next morning, she agreed, she overheard a conversation between Chantelle, Peggy, and Todd. She denied that she heard Todd speak of “catching them in the shed together last night”. She denied that a fight occurred between herself and Chantelle at that stage, but said that they had “had a few words”. She denied that she had departed the home angrily, and that that was because she had been interrupted having consensual sexual intercourse with the applicant in the shed.

54. She agreed that, the next morning, she said nothing to Chantelle about what had happened the night before, and nothing about her intention to go to the police. She denied that Chantelle was saying in the overheard conversation that the complainant had been flirting with the applicant earlier the previous evening. She denied that the overheard conversation caused her embarrassment or shame.

Re-examination and further cross-examination

64. In re-examination, she said that she did not scream out for help in the bedroom because of the presence of Babette, embarrassment, and humiliation.

65. In further cross-examination, she denied a number of propositions, including that, in the shed, there was consensual sexual contact; that Todd saw them both in the course of it; that later, on her return to the bedroom, the applicant came to the bedroom and she returned to the shed with him; and that they had consensual sexual intercourse in the shed that came to an end when the applicant ejaculated onto the bed sheet.

66. The complainant agreed that she had previously said that she was released from hospital at about 5:30 pm on Tuesday, 27 January 2015.

Evidence of the mother of the complainant

67. Martha gave evidence that on 24 January 2015 her daughter Connie asked whether she could stay the night at the home of Chantelle. Her mother agreed. Gary took the complainant to Chantelle’s house in the afternoon.

68. Martha returned home at about 10:30 pm from a country music concert. Between 11 pm and 11:50 pm, Martha sent a message to Connie via Facebook that included wishing her “sweet dreams”. At 8 am on 25 January, Martha saw that Connie had responded to that message at about 2 am with “Awh! Thank you! Good night love you” and two love heart emojis.

69. On Sunday 25 January, Martha had two telephone conversations with Connie after the arrangement had been made for her to be picked up from Chantelle’s home. During the second conversation, Connie was upset and crying and said that she was “hurting”. When Martha asked whether it was as a result of a fight with Chantelle, the complainant spoke of being sexually assaulted in Chantelle’s bedroom by the applicant, whilst Chantelle and Babette were asleep on a mattress on the floor. She recounted the detail of Chantelle suggesting to the applicant that he sleep on the mattress with his daughter, and that Chantelle sleep on the bed with her friend the complainant, and the rejection by the applicant of that suggestion. Martha was very shocked by the phone call. She had to keep prompting her daughter to keep talking. She did not ask her about specifics.

70. Later, Martha saw her daughter at the home of Susan. The complainant was hysterical, crying, and very upset.

71. Martha saw injuries to her daughter, namely a mark on her neck and on her “forearms”, which Connie said had been caused by the applicant. Each looked to Martha like a bruise.

72. In cross-examination, Martha agreed that, for her daughter, losing the friendship of Chantelle would have been significant and confronting.

73. She agreed that the first she knew of something being wrong with Connie was by way of the Facebook message from the complainant to the effect that she had been fighting with Chantelle, and would be waiting out the front.

74. Connie had told her mother something about Todd, but Martha could not recall what it was; in particular, she did not recall Connie saying anything about Todd “catching them”.

Evidence of the sister of the complainant

75. The elder sister of the complainant, Susan, was 26 years of age at the time of giving evidence. As at January 2015 she was living at an address in Tamworth with her fiancé, Frank.

76. On the morning of 25 January 2015, she received a phone call from her mother, Martha. Fifteen minutes later Connie arrived. She was hysterical, crying, shaken, and pale. The complainant said that the brother of Chantelle had “forced sex” with her. The complainant was inconsolable, screaming, crying a lot, and it was hard to make sense of what she was saying. It was Frank who spoke of getting the police involved. Susan was not cross-examined.

Medical examination of complainant; DNA evidence

77. Dr McDonald was a specialist pediatrician who also had training with regard to sexual assault examinations. He saw the complainant on 25 January 2015 and took a statement from her. He recounted a history that was generally consistent with the examination-in-chief of Connie, although she had told him that the penile/oral intercourse occurred after the digital/vaginal and penile/vaginal intercourse in the shed. The complainant spoke of having changed her underwear between the assaults in the shed and the assaults in the bedroom.

78. He observed a number of injuries to the person of the complainant: bruising and dried blood on the inner part of one of her ears; on the neck a mild pimple that had been scratched; no abnormalities to the right nipple, although a history had been provided of biting and bleeding; a one centimetre superficial scratch on the left shoulder; and four scratches to the left breast “only a few millimetres long and superficial”. The observed injuries were drawn by the doctor on a number of diagrams representing the person of the complainant.

79. The genitalia of the complainant were normal. Swabs were taken from various parts of the body of the complainant.

80. In cross-examination, the doctor recounted that a result from combined high and low vaginal swabs from Connie was a mixed DNA profile, within which the complainant was the major contributor and the applicant could not be excluded as the minor contributor. He agreed that a result for item 1B, one of the vaginal swabs, was “semen detected”, but that it did not of itself positively identify the semen as coming from the applicant.

81. As for the ear injury, he could not provide a definitive cause for it, and agreed that any type of piercing is prone to bleeding, and that the ear is a sensitive part of the body.

82. He agreed that the complainant told him that the applicant had bit her right nipple. He agreed that he observed no bleeding at the time of the examination, and recorded that there was “no abnormality” to that particular part of her body.

83. The doctor agreed that, if there had been a bite mark to the right breast resulting in bleeding observed by him, he would have made a notation of it.

84. On the other hand, the doctor also said that it was possible that there had been bleeding from that part of the body, but that he had been unable to observe any such injury by the time of the examination.

85. He agreed that there were no injuries to the genitalia of the complainant, but said that, in a violent sexual assault, such injuries are “possible not necessary”.

86. A forensic biologist explained that scientific item 1BC was a combination of the high and low vaginal swabs. The male DNA recovered was indeed derived from the sperm cells identified. There was no cross-examination of the expert.

Evidence of the sister of the applicant

87. Chantelle Crosland was 19 years old when she gave evidence in the Crown case. She had been very close to the complainant in January 2015. She recounted the general background of the matter, including the first visit to the shed for a few hours in the evening by herself and Connie. She claimed that the complainant was interacting with the applicant by “going over to him, asking him to take photos with her, like bending over… in front of him”. She saw no interaction between her brother and the complainant other than “nice talking”.

88. At about midnight, the two adolescent friends returned to the house and entered the bedroom of Chantelle. The complainant asked whether Chantelle would mind if the complainant went back to the shed, because she was unable to sleep. The complainant left. At the time she was wearing a loose singlet, no bra and shorts that were “[w]hite with a pink brim”. According to Chantelle, Connie had been wearing that outfit all afternoon.

89. At about 12:30 or 1 am, Chantelle was in her own bed, and the complainant came and got into bed with her. She did not speak to Connie.

90. About 30 to 60 minutes later, the applicant came in and joined the two young women in the bed. Very shortly afterwards, Chantelle got down on the mattress with Babette.

91. She fell asleep and slept straight through until 6:30 or 7 am. When she woke the applicant was back down in the shed, and she took Babette to her father.

92. Chantelle did not know how long the applicant was on the bed next to Connie. Her evidence was that, if there had been discussion in the bedroom, that would have woken her up from her position on the mattress. Her belief was that if the light had been turned on she would have woken, and that she also would have done so if her brother, Todd, had been standing at the door talking to somebody in the bedroom.

93. The next morning there had been a conversation in which her mother, Peggy, had spoken of Connie going to the police.

94. Later, after the complainant awoke, she accused Chantelle of believing “them over me”. The complainant never told Chantelle what she claimed actually happened.

95. In cross-examination by the Crown prosecutor pursuant to s 38 of the Evidence Act 1995 (NSW), Chantelle denied that the complainant activated a DVD in the shed, and that her brother had smacked the complainant on the backside. She had not said to the applicant anything about his behaviour being inappropriate whilst they were in the shed.

96. She was firm that she recalled that the complainant spoke of being unable to sleep, and returning to the shed.

97. She agreed that she had asked Connie to join her on the mattress on the floor when the applicant was lying on the bed. She denied that that was because she thought his presence on the bed with the complainant was inappropriate, but rather she (Chantelle) simply wanted “company”.

98. She asserted that, in the shed, the complainant was being “sexually suggestive” towards the applicant.

99. She agreed with the Crown prosecutor that the applicant at some stage did come into her bedroom and speak of a lost phone. He had knocked on her bedroom door, woken her up, and asked whether she had seen his phone. That was whilst she and the complainant were lying in bed in the bedroom, and after they had left the shed at around midnight. She did not hear her brother ask the complainant to come down to help look for the missing phone in the shed.

100. She agreed that, eventually, she ended up on the floor with Babette, with the applicant and Connie lying on the bed together. The mattress was right up against the bed. Her evidence was that, whilst she was lying on the mattress, if others were talking on the bed next to her, she would have heard it and woken up. The same would have occurred if someone was screaming, and Babette would have woken as well.

101. There was no conversation between Connie and Chantelle after Chantelle returned from the shed the second time.

102. The next morning, Todd spoke of having seen Connie and the applicant kissing in the shed; according to him, when they saw him, they stopped and seemed embarrassed.

103. By the time the applicant was dropped back at his own home the next morning, the complainant had already said something about going to the police. Later, Connie expressed her incredulity that Chantelle was believing “them over me”.

104. At no time did Connie complain to Chantelle about the conduct of the applicant the evening before. The complainant did not appear to become uncomfortable with the applicant during the first, lengthy visit to the shed.

105. In cross-examination by defence counsel, Chantelle gave evidence of Facebook messages from a person calling himself or herself Amy Longyard. Some messages were tendered in evidence, in which the sender asked Chantelle to tell the applicant that the sender was “sorry about going to the cops”, and pleaded with Chantelle not to ignore the sender as they used to be “best friends”. One of the messages also asked, “Is Phil still with Steph?” Chantelle was questioned by defence counsel about the messages that, on the defence case, were sent by the complainant in that false name, and in which she apologised, and asked whether the applicant could “put it behind him”. An effort was made by defence counsel by way of an image to connect the Facebook messages with the complainant. The understanding of Chantelle was that the Facebook messages, which were dated 2 March 2017, were the complainant saying that she had not told the police the truth. She did not take the messages to the police in March 2017, but provided them to the solicitor for the applicant on the instructions of the latter.

Evidence of the mother of applicant

106. The mother of the applicant, Peggy, gave evidence that, in the month in question, four persons lived in the home. At that time, Peggy was concerned about the applicant staying over at the home, because she believed that the applicant had had some “mental health issues”.

107. She confirmed the uncontroversial background of the evening in question. At some stage, the complainant said something to Peggy about men “checking out” her breasts. Otherwise, the evening was unremarkable, though she was woken from a doze in her bedroom to hear Babette screaming and Chantelle making her a bottle.

108. She eventually woke up at 7 am the following day. She entered the bedroom of Chantelle, and saw the complainant asleep on the bed fully dressed. Later, Todd told her that he had seen the complainant and the applicant in the shed “kissing and cuddling and laughing and that”. At some stage that morning, Chantelle told Peggy that the complainant had said that she was going to involve the police because the applicant had raped her. When Peggy drove her son home, she asked him what had happened; he did not reply.

109. She agreed that, later on Sunday 25 January 2015, investigating police conducted a “video walk-through” of the home. (I interpolate that, although that video was tendered in evidence before the jury, neither counsel having submitted to this Court that it contains anything noteworthy with regard to the ground of appeal, I have not watched it in Chambers.)

Evidence of the partner of applicant

110. Stephanie Frost, the partner of the applicant, gave evidence that on Saturday, 24 January 2015, the applicant had gone out without her. He was home when she woke up the next morning, the Sunday. Babette was in the care of his family.

111. That morning, he revealed that he had been charged with sexual assault. She was upset. Later he gave a version that the complainant had been flirting with him in the shed and that they had consensual sex at that location. He spoke of foreplay and digital/vaginal penetration. He spoke of the complainant having returned to the shed alone, without Chantelle.

112. On Tuesday, 27 January 2015, Ms Frost was in a street of Tamworth when she saw the complainant. The complainant spoke of having wanted to have sex with the applicant.

113. In cross-examination by the Crown prosecutor, Ms Frost maintained the position that she had such a conversation with the complainant at around that time.

114. In cross-examination by defence counsel, she confirmed that she considered that she remained in a relationship with the applicant.

115. She could not be sure of the exact date upon which the conversation in the street took place, although it must have been between the morning of 25 January and when she made her statement to police on 29 January 2015. She agreed that there had been some bad blood between Ms Frost and the complainant at school.

Evidence of the brother of applicant

116. Todd Crosland was 29 years of age when he gave evidence. He confirmed that in January 2015 he was living with his mother Peggy, his sister Chantelle, and his grandmother at the address in Tamworth.

117. He provided an uncontroversial background to the matter. He spoke of the complainant being “a bit flirty” with the applicant at the shed. When Todd went to bed, his own state of intoxication was 7/10. He returned to the shed to get some more DVDs, and saw the complainant and the applicant “rolling around” kissing on the mattress in the shed. They moved away from each other and seemed embarrassed. He returned to the house. He did not see the applicant or the complainant again that night. He did not see the applicant in Chantelle’s bedroom, nor did he (Todd) go into that bedroom.

118. The next morning he spoke to his mother of what he had seen in the shed.

119. When cross-examined by the Crown prosecutor, he did not recall the complainant and Chantelle staying in the shed for a number of hours, but rather only coming and going. He did not recall the complainant bending over to put on a DVD, nor the applicant smacking her on the bottom. He never heard the applicant refer to the complainant in affectionate terms in the shed.

116. He denied that, on his return to the shed, he had seen anything resembling a sexual assault.

117. He did not recall at any point in the evening walking past the bedroom of Chantelle and looking inside. Nor did he recall seeing the applicant lying on the bed of Chantelle next to the complainant.

118. In cross-examination by defence counsel, he confirmed that his statement to police of Sunday, 25 January 2015 spoke of telling his mother in the morning that he had “sprung” the complainant and the applicant kissing, and that his mother was not happy about it. He had said in that statement that his mother, Chantelle, and he had discussed the matter for a while, and after that he “just laid down getting over my hangover”. He could not recall saying those things in his statement, however.

Evidence of the officer in charge of investigation

123. The detective in charge of the investigation gave evidence. He spoke of his interaction with the complainant on 25 January 2015; the taking of photographs of her; her attendance at Tamworth Hospital; the preparation of her statement; the seizure of the clothes she was wearing; the voluntary attendance of the applicant at a police station, where he voluntarily engaged in a recorded interview; and his voluntary provision of a sample of his DNA.

124. The detective also spoke of seizing certain items from the home of the Crosland family, including a white sheet from a bedroom. No semen was detected on that sheet. A sheet from the shed was not examined.

125. The detective had never seen the document containing messages in the name of Amy Longyard before the day he gave evidence. If he had been provided with those messages in March 2017, he would have investigated them by contacting Facebook.

126. He agreed that medical records showed that the complainant arrived at a mental health ward of Tamworth Hospital at 1:45 pm on 25 January, and departed at 4:40 pm on the same day. The detective understood that to reflect the consultation with the doctor who had given evidence.

127. He agreed in cross-examination that the applicant had never been in trouble for sexual matters before.

128. He agreed that the white sheet from the bedroom had been seized because of the allegation of sexual assault at that location. He confirmed the absence of semen on that sheet.

129. He agreed that the shorts that the complainant had said she was wearing at the address had not been sent away for testing, despite the fact that she had asserted that the applicant had ejaculated onto those shorts.

130. He also agreed that the swab from the right breast of the complainant had either returned no result or had simply not been tested, despite the complainant alleging that the applicant had bitten her on that part of her body.

Recorded interview of applicant

131. The applicant engaged in a recorded interview with police on Thursday, 29 January 2015. Noteworthy aspects of its transcript are as follows (again, not having been invited by either counsel to watch it for the purposes of this application, I have not done so).

132. The applicant was born in early 1991, and was therefore almost 24 years of age in January 2015.

133. He agreed that he had had sexual contact with the complainant on the Saturday night and Sunday morning at the address in Tamworth, but his position was that it was consensual, not sexual assault.

134. The applicant spoke of the complainant constantly flirting with him “all that afternoon”. When Todd and Chantelle left the shed, the applicant kissed Connie. She went into the house.

135. Two to three hours later, she returned by herself. They kissed, and he asked whether he could place his hand “down her pants”. The complainant replied “I don’t care”. At that time Todd walked in during the kissing and “finger[ing]”. The applicant said that the complainant was “shameful that she had been caught out”. The complainant went inside the house after Todd left, and the applicant stayed in the shed.

136. After an hour or two, the applicant went inside to check on his daughter Babette. The complainant was awake when he entered the bedroom of Chantelle. She told him that he was a “tease”. He invited her to the shed, and she followed him willingly and there engaged in sexual intercourse willingly. When it concluded, she went inside the home, and the applicant went to sleep in the shed.

137. Returning to the first part of the chronology of the evening, he confirmed that the first incident between himself and the complainant in the shed only involved kissing.

138. He recounted his own trip to the bedroom in the early hours, and spoke of the complainant joining him in the shed for a second time, and the unexpected arrival of Todd at the shed. There was some confusion on his part as to the chronology, but his position was that it was during kissing and digital/vaginal penetration that Todd walked into the shed. Thereafter Todd and the complainant left. Later, the applicant went inside the home to check on his daughter. It was then that the complainant and the applicant returned to the shed, and engaged in penile/vaginal intercourse.

139. Speaking of the time when he went to the bedroom to check on Babette, he said that the complainant was still awake. His evidence was that, “Me brother come in and said, brother, brother turned the light on as I was checking on my little girl and then I just jumped up and walked out” (EA transcript, Q/A166). The applicant was lying in the bed for ten minutes trying to sleep until his brother came in and turned the light on. The applicant had no memory of touching the complainant during that time, and he was lying next to his sister, not the complainant. His state of insobriety was five or six out of ten.

140. He had no memory of seeing his sister, Chantelle, not on the “main bed”, and did not remember seeing Chantelle sleeping on the same mattress that Babette was on.

141. He confirmed the chronology of: the initial socialising in the shed, featuring flirtation on the part of the complainant; the return of the complainant to the shed on her own; the kissing and digital/vaginal penetration there; the arrival of Todd at the shed; the departure of Todd and the complainant; the return of the applicant to the house and the bedroom; and the return of the applicant and the complainant to the shed, where penile/vaginal intercourse took place. His position was that he had ejaculated on the sheet in the shed, but volunteered that he and his partner had perhaps had sex on that sheet as well, some time ago.

142. After sexual intercourse came to an end, the complainant dressed and departed the shed. The position of the applicant was that he did not ejaculate inside the complainant’s body.

143. The next morning, the applicant asked his mother whether she would drive him and his daughter home to his partner. He did not inform his mother of what had occurred between himself and Connie. There was no conversation about what had happened the evening before. He did not see Chantelle that morning.

144. The police put the version of the complainant to him, which was generally denied. He denied any attempt at penile/oral intercourse in the shed.

145. He denied that, in the early hours of the morning, he went into the bedroom and lay in the bed with the complainant. He denied ever sleeping in that bed, or having sex with anyone in that bed, and denied the proposition that he had threatened the complainant with fatal harm if she told anyone of what had happened.

146. He agreed that he had spoken a little inconsistently about who was awake and who was asleep when he was lying on the bed next to his sister, Chantelle, and the complainant.

Defence case

147. No evidence was called in the defence case. Reliance was placed upon the recorded interview, the raising of character in a specific way, and the exculpatory evidence given by family members of the applicant and his partner in the Crown case. The position of the applicant remained that the only sexual contact between himself and the complainant occurred in the shed; that it was digital/vaginal and penile/vaginal intercourse; that it was consented to by the complainant; that there was no penile/oral intercourse in the shed; and that there was no sexual contact between them whatsoever in the bedroom.

Ground of appeal

148. In support of the application for leave to appeal against conviction, the following ground was notified and pressed at the hearing.

The verdicts of the jury in relation to counts 2-6 are unreasonable, or cannot be supported, having regard to:

a)   the evidence in the trial; andb)    the jury’s acquittal of the appellant on counts 1 and 7

Submissions of the applicant regarding both aspects of ground

149. In written submissions, counsel for the applicant addressed the counts in reverse chronological and indictment order. The two aspects of the ground – specific inconsistency of verdicts, and general inadequacy of evidence – were intermixed in the written submissions.

150. With regard to the two counts relating to the bedroom that ended in conviction, counts 5 and 6, the following was put forward.

151. In her complaints to her mother, Martha, the following morning, the complainant spoke only of the applicant “going all the way” with her in the bedroom. She said nothing about the acts at that location upon which counts 5 and 6 were based. And in any event, that complaint hardly made sense in the context of there having already been (on her evidence) penile/vaginal intercourse in the shed. In that sense, the complaint by Connie to her mother also detracted from the convictions on counts 2, 3 and 4. Finally, the complaint of “going all the way” must have related to count 7, an acquittal count, and could not be relied upon now by the Crown with regard to counts 5 and 6.

152. In similar vein, nothing the complainant said the following morning to her sister, Susan, could be connected to the bedroom allegations as opposed to the shed allegations.

153. As for the history given to Dr McDonald, it was detailed with regard to the shed allegations. But it was paltry with regard to the bedroom allegations. To the extent that the complaint was that the applicant “did the same thing” in the bedroom as he had done in the shed, that was objectively not correct even on the Crown case: there were many significant differences between the two sets of allegations.

154. As for scientific evidence, the complainant had said that the applicant ejaculated on her shorts and near her vagina after the intercourse in the bedroom. The shorts were not tested, and there was no explanation for that investigative failing. A sheet from the bedroom was tested, and it contained no semen. Scientific evidence, in other words, provided no support for any of the three counts pertaining to the bedroom.

155. As for Todd, the Crown and the defence were agreed that he had seen the applicant and the complainant in some sort of intimate or sexual contact together. The Crown case was that he saw forced sexual contact in the bedroom; the defence case was that he saw consensual sexual contact in the shed.

156. With regard to the bedroom allegations, the evidence of Todd was that he never entered the bedroom, and never saw the complainant and the applicant together on the bed in that room. His evidence was firm that the only time he saw the two of them together was in the shed, and it appeared to him to be consensual sexual contact.

157. The evidence of Chantelle did not support the proposition that there had been any sexual assault in the bedroom. She was in that room; she was lying on a mattress near the bed; she was asleep; she was not intoxicated by alcohol or prohibited drugs. And the evidence of the complainant was that, in the course of the three offences in the bedroom, she was screaming, although “not very loud”.

158. Furthermore, the events in the bedroom were within a continuum. Certainly, the digital/vaginal penetration underpinning count 6 immediately preceded the penile/vaginal intercourse underpinning the acquittal count, count 7. Indeed, each of the bedroom counts occurred at the same location, at the same time, with Chantelle awake a short time before, and with, on the Crown case, the applicant having violently sexually assaulted the complainant in the shed earlier that evening.

159. In all the circumstances, it is not easy to see a point of rational differentiation between the acquittal on count 7 and the convictions on counts 5 and 6. And it is no answer in that regard for the Crown to point to the lack of scientific evidence of ejaculation in support of that differentiation, for two reasons.

160. First, the ejaculation was said to have occurred outside the body of the complainant; absence of detection of semen could not therefore explain exculpation by the jury with regard to penetration inside her body.

161. Secondly, because the Crown case was that Todd had seen the applicant and the complainant at around the time of counts 5 and 6, and Todd himself had flatly denied it, if anything taken as a whole the evidence in support of those counts was weaker than the evidence in support of the acquittal count 7, not stronger. And any intoxication of Todd could hardly impugn his clear evidence that he observed the applicant and the complainant together in the shed, not the bedroom; drunkenness could not lead to such a patent divergence in location.

162. It was said that the prosecution proposition that Todd walked into the bedroom and saw sexual contact in that location must be rejected, which leads to the proposition that the evidence supporting counts 5 and 6 could not be differentiated from the evidence supporting acquittal count 7, on the asserted basis that the evidence for the two former counts was stronger; in truth, it was weaker.

163. The written submissions then turned to count 4, the allegation that the applicant kissed the complainant on the breast at the end of their sexual interaction in the shed. It was said that the verdict can be seen to be unreasonable when one assesses the evidence in support of it, even if one disregards (for the sake of argument only) the detraction from the Crown case by way of the acquittal on count 1.

164. The point was made that, in his opening and closing, the Crown prosecutor had spoken clearly of the count being underpinned by kissing. And yet, if the transcript is correct, the evidence-in-chief of the complainant was that the applicant “twisted” her breast. When asked how he had done so, she spoke of him pulling up her singlet before she got off the bed and starting to kiss her breasts.

165. In cross-examination, the complainant spoke of having been bitten on the right nipple, with the result that it bled.

166. In short, whether the allegation was that the applicant bit the complainant on the nipple, or kissed her on the breasts, or twisted one or both breasts (presumably with his hand) was never fully clarified in the Crown case.

167. Separately, the history to the doctor was of a biting to her right nipple, with some bleeding. Dr McDonald did observe a 1 cm scratch to the shoulder, and four scratches to the left breast of the complainant, which were only a few millimetres long and superficial. Those observations hardly supported the Crown case. Nor did the fact that a swab was taken from the right nipple of the complainant but not examined. Finally, in an exchange with the trial judge in the absence of the jury before the commencement of the summing-up, the Crown conceded that “any injury” to the breast was not “confirmatory” of count 4.

168. As well as that, the complainant said nothing in her evidence-in-chief in support of count 4 until taken back to the topic by the Crown prosecutor.

169. In all the circumstances, it was said that the state of the evidence with regard to count 4 was so unsatisfactory that the jury was not entitled to return a verdict of guilty. The position was said to be even clearer once one takes into account the failure of the jury to be satisfied beyond reasonable doubt about count 1, which was alleged to have occurred at the same location and time.

170. As for counts 2 and 3, the digital/vaginal and penile/vaginal penetration in the shed, it was said that they need to be considered in the context of the acquittals on counts 1 and 7, and the unsatisfactory nature of the evidence on counts 4, 5 and 6. It was said that the detection of the semen of the applicant in the vagina of the complainant did not take matters further, because it was always his case that there was consensual penile/vaginal intercourse between the two of them. (I understood it to be accepted that, even without ejaculation, penile/vaginal penetration could have led to internal deposition of semen.)

171. Finally, as for count 1, the acquittal must mean that the jury doubted whether there had ever been penile/oral penetration. And yet counts 1, 2 and 3 were part of a single transaction, according to the Crown case. In the same way that count 7 could not be separated from counts 5 and 6, there could be no factual separation between counts 1, 2 and 3.

172. In short, the written submission was that when one considers the inherent insufficiency of the evidence in support of each conviction count, and reflects as well on the impossibility of differentiating rationally between the conviction counts and the acquittal counts, the appropriate course is for this Court to quash all of the convictions, and enter acquittals on counts 2, 3, 4, 5 and 6.

173. In oral submissions, counsel for the applicant raised the following further points.

174. First, it was argued that the injuries to the complainant’s ear as observed by the doctor provided insufficient corroboration of the complainant’s version of what happened in the bedroom. Counsel advanced two alternative hypotheses for the ear injury: first, the injury arose from an unexplained cause that had nothing to do with a forced removal of an earphone; or secondly, the applicant removed the earphone in circumstances unrelated to a sexual assault.

175. Secondly, counsel submitted (in response to a Crown submission) that the applicant in his interview did not assert that Todd walked in on the applicant and Connie in the bedroom at any time possibly relevant to when counts 5 to 7 were alleged to have occurred. What the applicant did say in the interview was that at some point Todd did walk in on him and the complainant in the shed, and also in the bedroom, but the latter was at some other stage not relevant to the alleged events underpinning counts 5 to 7.

176. The third point made orally concerned the inconsistent narratives with regard to the chronological position of the oral intercourse that the complainant recounted to Dr McDonald and then later in her evidence at trial. Counsel responded to a submission by the Crown that the inconsistent narratives constitutes a rational point of differentiation between count 1 and the other two counts in the shed, especially in the context of the applicant denying oral intercourse, but accepting that there had been digital/vaginal intercourse, and penile/vaginal intercourse in the shed. I understood the submission to be that, if the jury did not believe the denials in the recorded interview with regard to counts 2 and 3, it can hardly make sense for the Crown to pray in aid his denial of count 1 in the same interview in support of rational differentiation.

177. In oral submissions in reply, counsel for the applicant emphasised that it is impossible to “divide up” the bedroom counts in such a way as to accommodate the acquittal on count 7 with the convictions on counts 5 and 6.

Crown submissions about both aspects of ground

178. In written submissions, the Crown made the following two general points.

179. The jury had been told to consider the counts separately. The jury was perfectly entitled to return a “mixed verdict”, and the mere fact that it did so does not of itself call the conviction counts into question.

180. Each of Chantelle, Todd and Peggy was cross-examined by the Crown prosecutor pursuant to s 38 of the Evidence Act. The Crown case was that their evidence should be largely rejected, and the jury was quite entitled to do so. Having said that, it is significant, it was submitted, that the Crown case was also that some of their evidence supported the Crown case, as did some of the contents of the recorded interview of the applicant.

178. Turning to particular aspects of the evidence, the Crown emphasised that after there had been, according to him, no explicitly sexual contact in the shed during the first stage, the applicant in the early hours entered the bedroom in which his younger sister and her 16-year-old female friend were to sleep and asserted that he had lost his phone. That was an unusual thing to do, and the excuse for doing so regarding the lost phone was supported by the evidence of his sister Chantelle.

179. Secondly, contrary to the submission of counsel for the applicant, there was evidence (apart from that of the complainant) that Todd had indeed entered the bedroom when the applicant and the complainant were on the bed together: it came from the mouth of the applicant himself, in his recorded interview (EA transcript, Q/A 164 and Q/A 173-174). It is significant that the admission of the applicant was that Todd had interrupted the applicant and the complainant whilst they were lying on the bed in the bedroom, and the applicant had immediately jumped up as a result of that interruption. The jury was entitled to regard that admission by the applicant as inadvertently supportive of the Crown case, and destructive of the credibility of Todd.

180. Thirdly, there undoubtedly was a time, as the complainant had said, when Chantelle was down on the mattress and the applicant and the complainant were together on the bed in that bedroom.

181. Fourthly, in his interview, the applicant explicitly denied having said anything about having lost his phone. But that was contradicted not only by the complainant but also by his own sister.

182. Fifthly, the texts, and calls, and complaints in person made by the complainant the next morning were powerful evidence that something very damaging had been inflicted upon her the evening before.

183. Sixthly, her readily observed state of distress at the time of speaking to her mother and her sister was also something that the jury was entitled to regard as supportive of the Crown case.

184. Seventhly, the complaints to Dr McDonald were cogent. When the complainant spoke of the applicant “doing the same thing again” in the bedroom as he had done in the shed, it was perfectly clear what she meant: forced penile/vaginal intercourse, without the protection of a condom with regard to pregnancy or infection.

185. Eighthly, the injuries seen by Dr McDonald were powerful corroboration that Connie had been the subject of a recent sexual assault. The bleeding injury to her ear was consistent with her evidence that, in the bedroom, an earphone had been forcibly removed from her by the applicant. The scratches to her breast were supportive of rough contact to that general area of her body in the absence of consent.

186. In similar vein, her mother had seen a mark to her neck, and on at least one of her forearms.

187. Ninthly, the suggestion that the complainant confronted Ms Frost, who was the partner of the applicant both at the time of the allegations and at the time of the trial, in a public street and spoke so bluntly of her own consent to the sexual contact, strained credulity. The same may be said of the Facebook messages from a person called Amy Longyard that were exculpatory of the applicant: the jury was entitled to give all of that evidence little weight.

188. Tenthly, parts of the recorded interview of the applicant, conducted a matter of days after the evening in question, hardly assisted the defence case, as follows. He accepted that he had had sexual intercourse with the complainant in the shed, after he had been lying with her on a bed in the bedroom, thereby demonstrating a sexual interest in the bedroom. He accepted that Todd did indeed see the two of them in the bedroom. The applicant accepted that he was reasonably intoxicated, and one may infer disinhibited as a result. The adoption by the applicant of the interruption by Todd in the bedroom was completely inconsistent with the evidence of Todd himself.

189. As for other seemingly exculpatory witnesses, although Chantelle regarded herself as a light sleeper, she heard nothing of the purported conversation in the bedroom in which the applicant claimed to have had a conversation with the complainant about him being a “tease”. And her position must have been that she did not wake up, even though the version of the applicant himself was that Todd did indeed enter the room, the light was turned on, and the applicant hurriedly departed.

190. It was said that Chantelle and the mother of the applicant, Peggy, were also not to be accepted with regard to the clothes that they said that the applicant was wearing. Apart from anything else, their evidence was not consistent with the admission of the applicant in the recorded interview about that topic.

191. In his interview, the applicant said that Chantelle was never awake in the bedroom when he was present. And yet the evidence of Chantelle was that she was awake and indeed spoke to the applicant at that location.

192. Finally it was said that there was some inconsistency between the witnesses as to when it was that there was discussion the next morning about the applicant having said that she was going to the police.

193. Turning then to the specific question of whether or not there was a basis for rational differentiation between the acquittal counts and the conviction counts, the following points were made by the Crown in written submissions.

194. As for count 1, the applicant denied any penile/oral intercourse in the shed. He never denied that digital/vaginal and penile/vaginal intercourse occurred in that location. In other words, count 1 can immediately be thought of as being in a different category from counts 2 and 3: its physical element was denied.

195. Furthermore, the swab from the vagina of the complainant that revealed the semen of the applicant corroborated the physical element of count 3.

196. As well as that, a complaint of oral sex in the shed was not made by the complainant to her mother. A complaint of oral sex was made to Dr McDonald, but its chronology with regard to the other counts in the shed was different from the evidence of the complainant, in that it placed the oral intercourse after the other forms of it.

197. In short, with regard to count 1: the applicant always denied it; the complainant did not speak of it at first; there was contradiction between the history given by the complainant to the doctor and the evidence of the complainant as to whether it occurred before or after the digital/vaginal and penile/vaginal intercourse; and the physical element of count 3 was supported by scientific evidence.

198. Not only that, the following morning the applicant admitted to Ms Frost that he had had (on his version, consenting) digital/vaginal intercourse with the complainant, along with “sex”. The jury was entitled to interpret that latter word as meaning penile/vaginal intercourse. In other words, there was evidence from the applicant’s own partner that, the next morning, he had admitted the physical elements of count 2 and 3, but had not said anything about count 1.

199. As for count 4, the marks to the left breast of the complainant were indeed corroborative of the proposition that there had been rough physical contact with that intimate part of her body without consent. Furthermore, the doctor gave evidence that there could have been a bleeding injury to the nipple that was not observable by the doctor by the time he examined her person.

200. The fact that the complainant left out the detail of having been kissed to the breast in the first part of her examination-in-chief is completely natural, and means nothing.

201. Turning to the counts with regard to the bedroom, counts 5, 6 and acquittal count 7, the Crown prosecutor submitted that in his interview the applicant had spoken of a period during which he and a young woman were lying on a bed together late in the evening whilst Chantelle was asleep on a nearby mattress. Later, on his version, the two of them had sexual intercourse in the shed. That admitted state of affairs provides general support for the proposition that there was indeed sexual contact in the bedroom, as well as the shed.

202. Furthermore, the discrepancy between the position of the applicant and that of Todd about the interruption by Todd in the bedroom badly damaged the defence case.

203. He also submitted that the jury was entitled to interpret the evidence of the complainant that her resistance grew louder as the sexual assaults in the bedroom became more intrusive, and developed over time. That meant that the jury was entitled to take into account the possibility that the noise that did not wake Chantelle was allegedly louder during the alleged penile/vaginal intercourse in the bedroom than during the other offences committed there. Finally, the jury was entitled to be circumspect about count 7 in the absence of the testing of the shorts, and the absence of the detection of semen on the sheet from the bedroom.

204. In all the circumstances, the written submission of the Crown was that one can discern a basis for differentiation leading to these mixed verdicts. Separately, there is nothing about the conviction counts, either when analysed individually, or in the context of each other, or indeed in the context of the two acquittal counts, that would lead this Court to intervene by quashing the convictions.

205. In oral submissions, the Crown prosecutor said that merely because the version of the applicant was rejected with regard to some counts does not detract from the entitlement of the jury to regard some other things that he said as true, and indeed corroborative of the Crown case. He referred in particular to the acceptance by the applicant in his interview that his brother did indeed come to the bedroom at some stage, contrary to what Todd had to say, and confirmatory of what the complainant had to say about that.

206. He submitted that, in assessing the truthfulness of the versions of events given by family members of the applicant, the jury could take into account the fact that they were all on notice from the morning of 25 January 2015 that the complainant was proposing to go to the police.

207. He emphasised the sharp discrepancy between the applicant and his sister about the question of the lost phone, and referred to Chantelle as thereby corroborating something that the complainant had said and that the applicant flatly denied.

208. As for discrepancies in the Crown case as to what precisely underpinned count 4, he submitted that defence counsel at trial made a tactical decision to ask no question whatsoever in cross-examination of the complainant about that topic.

209. He accepted that there was a significant chronological discrepancy between the complainant and the applicant about the number and timing of movements between the shed and the bedroom in the home. But he submitted that the jury was quite entitled to accept the chronology proffered by the complainant.

210. As for the failure to test the shorts and the absence of a positive result for semen on the sheet with regard to acquittal count 7, he accepted that, as a matter of theory, evidence of ejaculation outside the body does not directly prove penetration within the body. Having said that, as a matter of practicality, the finding of semen on the shorts of the complainant or upon the bed sheet from the bedroom would have been, he submitted, very powerful corroboration indeed of penile/vaginal penetration in the bedroom.

211. He took this Court to the detail of evidence of the complainant about the bedroom counts, and submitted that one can interpret it to be that the intensity and volume of resistance increased as the intensity of the sexual assaults increased. In other words, he submitted not only that there was a rational basis to acquit on count 7 and to convict on counts 5 and 6, but also that the convictions on counts 5 and 6 were not inherently unsafe on the evidence.

Determination of ground

215. It is convenient first to consider the part of the ground that focuses on the acquittals on counts 1 and 7 and their effect (if any) upon the convictions on the other counts, and then to consider the state of the evidence generally with regard to the conviction counts.

Irreconcilable verdicts?

216. Turning to the first question, the test is simply whether there is a rational basis for the differentiation by way of the satisfaction of the jury beyond reasonable doubt about the conviction counts and the failure of the jury to be satisfied beyond reasonable doubt about the acquittal counts: see Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35; Phillips v R (2006) 225 CLR 303; [2006] HCA 4; MFA v R (2002) 213 CLR 606; [2002] HCA 53.

217. It will be recalled that count 7 was founded upon penile/vaginal sexual intercourse in the bedroom. In my opinion, there are sound bases for differentiation with regard to this count, in particular when one reflects upon the verdicts of guilty on counts 5 and 6, the other two counts committed in the bedroom.

218. First, read as a whole, the evidence of the complainant was that her level of resistance, physically and by way of noise, increased as the sexual assaults in the bedroom continued, and as they increased in their physical intrusion. In particular, her evidence was that her resistance was pronounced at the time of the removal of her clothing, prior to penile/vaginal intercourse.

219. Such an escalation in response to an escalating assault may have commended itself as credible to the jury. The result was that the jury was entitled to find that, by the time of the penile/vaginal sexual intercourse, on her own version the complainant was resisting more loudly than she had done with regard to the indecent assault and the digital/vaginal intercourse in the bedroom. And in my opinion it was open to the jury to accept as a result that the first two forms of sexual assault could physically have occurred without Chantelle or Babette being woken, but to experience a reasonable doubt about whether the last form could have been. That is one point of rational differentiation.

220. Secondly, as I have said, the evidence of the complainant was that, after the act of intercourse underpinning count 7 had concluded, the applicant withdrew his penis and ejaculated on her shorts and her thigh whilst she was still on the bed. And yet the shorts were never tested, and the bed sheet did not reveal human semen. In that sense, the investigation of count 7 was incomplete, and corroborative evidence that one might expect to be present was absent. No such criticisms could be made of the evidence in support of the activities underpinning counts 5 and 6, by their nature. And whilst it is true, as a matter of strict theory, that the presence of semen in those locations could not of itself have proven penetration, the undoubted fact is that such a finding would have very powerfully corroborated that allegation.

221. A jury acting cautiously may have been troubled about the absence of corroboration that one would expect with regard to that count, and troubled about what seemed to be an obvious investigative failing. Those concerns did not apply to the other counts. That is a second point of rational differentiation.

222. Thirdly and finally, acquittal count 7 cannot impugn the three conviction counts relating to the shed. That is because the acquittal count was alleged to have taken place at a different time, in a different location, in a different context (that is, on the Crown case after the commission of the offences in the shed) and in different circumstances (that is, with another young person and a baby present). Because of the evidential differences between acquittal count 7 and conviction counts 2, 3 and 4, the former does not cast a shadow over the latter. That is a further point of rational differentiation between the acquittal on count 7 and the convictions on counts 2, 3 and 4.

223. In short, in my opinion there were perfectly rational bases upon which the jury could acquit the applicant on count 7, but find him guilty on the other counts, in particular counts 5 and 6.

224. The same may be said about the general differentiation of acquittal on count 1, and in particular with regard to differentiation from conviction counts 2, 3, and 4. That is for the following reasons.

225. The physical element of count 1 was denied by the applicant, in contrast to the physical elements of counts 2 and 3, which were admitted. That is one point of rational differentiation.

226. There was no mention of oral sex in the first complaints made by Connie. That is a second point of rational differentiation.

227. The physical elements of count 3 were corroborated by the scientific evidence of the location of semen of the applicant inside the body of the complainant. So, to some degree, were the physical elements of count 4, in my opinion, by way of observed injury to her breast. That is a third point of rational differentiation.

228. The applicant promptly informed his partner that the physical elements of counts 2 and 3 had taken place. He never mentioned the physical elements of count 1, and always denied them. That is a fourth point of rational differentiation.

229. Finally, for reasons analogous to those that I have given above at [222], the acquittal on count 1, alleged to have been committed in the shed, can play no role in impugning the convictions on counts 5 and 6, alleged to have been committed in the bedroom. That is a further point of rational differentiation with regard to those two conviction counts.

230. In short, I consider that there were soundly rational bases upon which the jury could find the applicant not guilty of count 1, but return a verdict of guilty on other counts.

231. It follows that I would not quash the five convictions on the basis of the two acquittals.

Generally unreasonable convictions?

232. Turning now to the second question, there was no controversy between the parties about the legal test for this Court determining that a verdict is unreasonable or unable to be supported. In those circumstances, I shall not recount decisions of the High Court of Australia about the question, nor provide extensive extracts from them. Instead, I shall simply indicate that I have applied the following principles, all of them derived from the plurality judgment in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-495.

233. First, this Court is determining a question of fact, not law.

234. Secondly, this Court is determining whether it was open on the evidence to the jury to return a verdict of guilty on the conviction counts.

235. Thirdly, in determining that question, a judge of this Court is to bear in mind the advantage of the jury in seeing and hearing the evidence given in the witness box.

236. Fourthly, a reasonable doubt experienced by a judge of this Court would be, in most cases, a reasonable doubt that the jury ought also to have experienced.

237. Fifthly and finally, the exception to the above proposition is that, if a judge of this Court believes that the advantage of the jury in seeing and hearing the evidence given is capable of resolving that reasonable doubt experienced by him or her, then that judge may conclude that no miscarriage of justice occurred.

238. Reflecting upon the evidence in support of the conviction counts themselves in accordance with those principles, in my opinion the case against the applicant was quite strong, for the following reasons.

239. First, injuries to the person of the complainant corroborated the proposition that she had been sexually assaulted the evening before, as follows.

240. She spoke of an indecent assault to her breasts, and injuries to one of her breasts were observed by a doctor the following day. The diagram drawn upon by the doctor shows that those injuries were not closely spaced; rather, between the four of them they covered a significant proportion of the area of the left breast of the complainant. Those injuries to an intimate part of her body supported the proposition that it had been the subject of some form of forceful touching – in the form of rough contact between her chest and the mouth of the applicant, perhaps with a twisting during that contact – without her consent. As for the absence of observed injury to the nipple, the doctor made it clear that it was possible that such an injury had existed, but he had been unable to observe it.

232. Separately, although it is quite correct that the Crown prosecutor spoke of the injuries to the breast as not being “confirmatory”, he by no means disavowed them entirely. To the contrary, in his final address, he spoke of them at length, and submitted that they were indeed something that the jury “would take into account”.

233. The complainant spoke of being subject to the application of physical force (apart from the sexual offences themselves), and her mother noted injuries to her neck and at least one forearm.

234. Most tellingly, the complainant spoke of an earphone being forcibly removed from her ear whilst she was lying on the bed in the bedroom. The next day the doctor noted an injury to her ear that had bled. It is to be recalled that the position of the applicant was that no force, sexual or otherwise, was applied by him to the complainant; in particular, there was no sexual contact whatsoever between them in the bedroom. Furthermore, no significant alternative rational hypothesis consistent with innocence was put forward at trial or before this Court to explain the observation by the doctor the following day of injury to the ear of the complainant.

235. Secondly, the text messages (including emojis symbolising sadness, distress and relief) sent by the complainant the next morning, her phone calls, her statement to the family of the applicant that she would be going to the police, her waiting outside the home, her prompt departure, her oral complaints in person, and her consistent history to the doctor all support the proposition that she had indeed been sexually assaulted the evening before.

236. In particular, I do not accept that the detailed criticisms of the various complaints are significantly persuasive; I think that it was entirely natural for the complaints by a deeply distressed 16-year-old adolescent to those who loved her to be incomplete and imprecise.

237. Nor do I believe that the criticism of the “shorthand” adopted with regard to the complaint to the doctor with regard to the bedroom allegations carries much weight.

238. Thirdly, a similar supportive role is played by her distressed, indeed hysterical demeanour observed by more than one person the following day.

239. Fourthly, the jury was entitled to infer that persons close to the applicant may (at the least, unconsciously) have seen and recalled things from his perspective. And the jury was entitled to go further, and to consider the possibility that such persons may not have been telling the truth in the witness box in order to protect the applicant. The jury was also entitled to take into account the fact that members of the family of the applicant were on notice from the earliest stage that a serious criminal complaint was to be made against him.

240. Fifthly, the jury was entitled to put to one side both the alleged conversation in a street of Tamworth, and the Facebook messages from an unidentified source that, on the defence case, were said to have emanated from the complainant. As for the latter, the jury was entitled to consider the fact that, although on their face they were potentially compelling evidence of innocence, they were never provided to the police for investigation and possible authentication as to their source.

241. Sixthly, the jury was entitled to look askance upon the inconsistency between the position of the applicant and his own brother as to whether the latter had entered the bedroom at all, and to use that discrepancy in its assessment of the evidence of Todd about the asserted interruption in the shed, and indeed its assessment of the defence case as a whole.

242. Seventhly, the same may be said about the discrepancy between the position of the applicant about the entry of Todd into the bedroom, the turning on of the bedroom light, and the sudden departure of the applicant, and the position of Chantelle that she slept through the entirety of any such process.

243. Eighthly, the same may be said about the discrepancy between the position of the applicant that he had neither lost his phone nor said anything about it, and the evidence of his sister that he spoke of that very topic when he entered the bedroom in which the two young women had gone to bed. Indeed, the jury may have felt that the complainant and Chantelle were telling the truth about the applicant having said that, and were entitled to reflect on the concomitant proposition that he had therefore distanced himself from the mechanism whereby he caused the complainant to return to the shed with him alone in the early hours of the morning.

244. Ninthly and similarly, the jury was entitled to judge critically the assertion of Chantelle and Peggy that the complainant was wearing the white “short shorts”, thereby somehow implicitly demonstrating consent to sexual contact with the applicant. Leaving aside any other basis for the rejection of such a line of reasoning, one can take judicial notice of the fact that the city of Tamworth in January experiences very hot and dry weather. Not only that, their evidence about what the complainant was wearing was directly contradicted by the position of the applicant himself by way of his recorded interview: it was that, just as she had said, the complainant was wearing blue shorts, not white.

245. More generally, the assessment of the credibility of the complainant, the “defence witnesses”, and what the applicant had to say in his video-recorded interview was quintessentially a matter for the jury. Reading a lengthy transcript in Chambers is surely a very poor simulacrum of the process undertaken over days by twelve jurors of assessing the demeanour of those persons, in particular during cross-examination, and reflecting upon their assessments in the jury room.

246. Furthermore, the discrimination in the verdicts shows that the jury approached its task with caution and analytical intelligence. In my opinion, this is precisely the kind of trial in which a judge of this Court should pay due deference to the verdicts of the jury, and exercise considerable caution before interfering with them.

247. In that regard, I have taken time to consider whether the convictions on counts 5 and 6 are unreasonable, bearing in mind the proposition that the complainant was being subjected to two sexual offences whilst Chantelle and Babette slept without disturbance close by. Ultimately, I think it was a matter for the jury to assess whether it accepted that proposition to the criminal standard, and for the same tribunal to make a determination whether, even if the complainant may have been exaggerating the degree and volume of her resistance at those stages, nevertheless it was satisfied beyond reasonable doubt that those sexual assaults had indeed occurred.

248. Finally, of course criticisms could be made of this Crown case, as they can be made generally of any proposition that requires demonstration of its truth beyond reasonable doubt. But none of them constitutes a “killer point”, and some of them were of lesser force. For example, whether the complainant needed to be “taken back” in her evidence-in-chief to the least serious allegation with regard to the shed is neither here nor there; that happens very commonly in criminal trials. For another, it is true that the events in the shed and in the bedroom could be seen in a sense as two continuous transactions. But the jury was quite entitled to discriminate within those continuums, just as it had been told it could do in the summing-up.

249. In short, in my opinion on the evidence it was well open to the jury to conclude, beyond reasonable doubt, that the applicant had sexually assaulted the complainant in the ways averred by counts 2 to 6 inclusive. Nor do I experience a reasonable doubt about the matter.

Proposed orders

259. In accordance with the above analysis, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 02 August 2019