Daaboul v R

Case •

[2019] NSWCCA 191

•

16 August 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Daaboul v R [2019] NSWCCA 191
Hearing dates:5 June 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Before: Bathurst CJ at [1]; Bell P at [299]; Hamill J at [312]
Decision:

(1)   Grant the applicant leave to appeal.
(2)   Quash the conviction of the applicant on Count 8 of the indictment dated 9 July 2018 and in lieu thereof enter a verdict of acquittal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Inconsistency of verdicts – Jury failed agree on Counts 1-7 – Jury convicted on Count 8 –– Count 7 and 8 arose out of same incident - Count 7 concerned allegation of choking so as to render complainant incapable of resistance with intention of enabling applicant to commit sexual assault - Count 8 concerned allegation of aggravated sexual assault where applicant inflicted actual bodily harm by choking complainant – Whether conviction on Count 8 is inconsistent with the failure of jury to agree on Counts 1-7 - Whether principles of inconsistent verdicts apply where failure to agree by jury.

 

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Failure by jury to agree on Counts 1-7 – Jury convicted on Count 8 – Whether reasonable doubt that the applicant committed the offence notwithstanding advantage of jury - Assessment of credibility of the complainant and supporting evidence.

 

CRIME – Sexual offences – Aggravated sexual assault – Assault complainant occasioning actual bodily harm – s 61J(1) Crimes Act 1900.

 

CRIME – Sexual offences – Sexual assault – 5 counts - s 61I Crimes Act 1900.

 

CRIME – Violent offences – Choking, suffocation or strangulation – Choking with intention of enabling applicant to commit sexual intercourse without consent – s 67(2) Crimes Act 1900.

CRIME – Violent offences – Stalking or intimidation – Intimidation of complainant with intention of causing the complainant to fear physical or mental harm – s 13(1) Crimes (Domestic and Personal Violence) Act 2007.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases Cited: Crofts v R [2018] VSCA 197
Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
Drysdale v R [2015] NSWCCA 135
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290
McCann v R [2014] NSWCCA 79
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Miller v The Queen [2002] WSCA 211
Osland v R (1998) 197 CLR 316; [1998] HCA 75
PA v R [2015] NSWCCA 18
Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v CBF [2012] QCA 294
R v CX [2006] QCA 409
R v DAL [2005] QCA 281
R v Formhals [2014] 1 WLR 2219
R v Garrett [2009] QCA 300
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v R, GJ (2009) 105 SASR 506; [2009] SASC 371
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Tukuafu v The Queen [2014] VSCA 345
Walker v R [2019] NSWCCA 4
Walker v R [2019] NSWCCA 4
Texts Cited: Nil
Category:Principal judgment
Parties: Joseph Peter Daaboul (the applicant)
The Crown (the respondent)
Representation:

Counsel:
A Bellanto QC with T Bicanic (for the applicant)
E Balodis (for the respondent)

  Solicitors:
Simon Diab & Associates (for the applicant)
Office of the Director of Public Prosecutions (for the respondent)
File Number(s):2016/176870
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Common Law
Citation:
Nil
Date of Decision:
24 July 2018
Before:
Lakatos SC DCJ
File Number(s):
2016/176870

HEADNOTE

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

The applicant, Joseph Peter Daaboul was charged on indictment with 8 counts arising from his conduct towards the complainant.

Count 1-3 and 5-6 each pertained to the applicant having sexual intercourse with the complainant without the consent of the complainant, knowing she was not consenting contrary to s 61I Crimes Act 1900 (NSW). Count 4 related to the applicant intimidating the complainant with the intention of causing the complainant to fear physical or mental harm contrary to s13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). Count 7 pertained to the applicant choking the complainant so as to render her incapable of resistance and did so with the intention of enabling himself to commit sexual intercourse without consent contrary to s 37(2) Crimes Act 1900 (NSW). Count 8 related to the applicant having sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the sexual assault did assault the complainant thereby occasioning her actual bodily harm contrary to s 61J(1) Crimes Act 1900 (NSW). Counts 7 and 8 both occurred on 7 April 2016 and arose out of the same alleged incident.

Following a trial by jury, the applicant was found guilty on Count 8. The jury was unable to reach a verdict on Counts 1-7. The applicant is yet to be sentenced. The applicant has appealed against his conviction on Count 8.

There were two main issues on appeal. The first issue was whether the verdict of guilty on Count 8 is inconsistent with the failure of the jury to agree on Counts 1-7, in particular, Count 7. The second issue was whether the verdict of guilty on Count 8 is unreasonable, or cannot be supported, having regard to the evidence.

Whether the verdict of guilty on Count 8 is inconsistent with the failure of the jury to agree on Counts 1-7?

There is no inconsistency between the verdict of guilty on Count 8 and the failure of the jury to agree on Counts 1-7, in particular Count 7: [231]-[234]; [249] (Bathurst CJ); [299], [310]-[311] (Bell P); [319]-[322] (Hamill J).

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 referred to.

The principles dealing with inconsistent verdicts where the so-called inconsistency is between a failure to reach a verdict on a particular count and a verdict of guilty on another count may apply where “the difference is incapable of any logical explanation”. However, the principles can have no application when the circumstances of each charge and the evidence relating to them were different. It could not be said that a failure to reach a verdict on one charge cast doubt on the complainant’s credibility such as to render a conviction on a different charge dependent on the acceptance of her evidence as illogical and unreasonable: [230], [235]-[248] (Bathurst CJ); [299], [310]-[311] (Bell P).

R v DAL [2005] QCA 281; Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249; Walker v R [2019] NSWCCA 4; Crofts v R [2018] VSCA 197 considered.

Osland v R (1998) 197 CLR 316; [1998] HCA 75; R v Formhals [2014] 1 WLR 2219; R v CBF [2012] QCA 294; R v CX [2006] QCA 409; R v Garrett [2009] QCA 300; Miller v The Queen [2002] WSCA 211; R v R, GJ (2009) 105 SASR 506; [2009] SASC 371; PA v R [2015] NSWCCA 18; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 referred to.

A jury’s failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported. The test is “unreasonableness rather than inconsistency” and the Court must “examine any differentiation in the verdicts to see if it can be justified”: [312]-[319] (Hamill J).

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; PA v R [2015] NSWCCA 18 considered.

R v Formhals [2014] 1 WLR 2219; Jones v R (1997) 191 CLR 439; [1997] HCA 56; MFA v R (2002) 213 CLR 606; [2002] HCA 53; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 referred to.

Whether the verdict of guilty on Count 8 is unreasonable, or cannot be supported by the evidence?

The Court has “reasonable doubt that the applicant committed the offence”. It is a doubt which should have been shared by the jury, notwithstanding the advantage that they had in seeing and hearing the complainant: [272]-[291] (Bathurst CJ); [299]-[309] (Bell P); [323]-[325] (Hamill J).

Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 referred to.

Judgment

  1. BATHURST CJ: The applicant, Joseph Peter Daaboul (the applicant), was charged on indictment with the following offences:

“1   on or about 2 June 2015, at Ultimo in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.

S 61I Crimes Act 1900 Law part code 64783

2   between 6 September 2015 and 27 September 2015, at Ashfield in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.

S 61I Crimes Act 1900 Law part code 64783

3   between 7 September 2015 and 28 September 2015, at Ashfield in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.

S 61I Crimes Act 1900 Law part code 64783

4   on 19 October 2015, at Strathfield in the State of New South Wales, did intimidate [the complainant] with the intention of causing [the complainant] to fear physical or mental harm.

S 13(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753

5   on 26 October 2015, at Rookwood in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.

S 61I Crimes Act 1900 Law part code 64783

6   on 26 October 2015, at Rookwood in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting.

S 61I Crimes Act 1900 Law part code 64783

7   on 7 April 2016, at Rookwood in the State of New South Wales, choked [the complainant] so as to render her incapable of resistance and did so with the intention of enabling himself to commit sexual intercourse without consent.

S 37(2) Crimes Act 1900 Law part code 82222

8   On 7 April 2016, at Rookwood in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting, and at the time of the sexual assault did assault [the complainant] thereby occasioning her actual bodily harm.

S 61J(1) Crimes Act 1900 Law part code 272”

  1. Following a trial which extended over nine days, the jury was unable to reach a verdict on Counts 1-7 in the indictment, but found the applicant guilty on Count 8. The applicant is yet to be sentenced.

  2. The applicant has appealed against his conviction on Count 8 on the following grounds:

“1.   The verdict of guilty on Count 8 is irrational and inconsistent with the failure to agree on Counts 1-7, in particular, Count 7.

2.   The verdict of guilty on Count 8 is unreasonable, or cannot be supported, having regard to the evidence.”

  1. Leave to appeal is required because the grounds of appeal involve mixed questions of fact and law. I am of the opinion that because the grounds of appeal are fairly arguable, leave should be granted.

  2. Because of the nature of the grounds of appeal, it is necessary to summarise the evidence given at the trial in some detail.

The Crown case

The complainant’s evidence

(i)   The interviews

  1. The complainant participated in two electronically recorded records of interview, the first on Saturday 9 April 2016, and the second on Monday 11 April 2016. The interviews thus occurred shortly after the incidents the subject of Counts 7 and 8 that allegedly occurred on Thursday 7 April 2016.

  2. The first interview was relatively short, lasting 15 minutes. The complainant described the applicant as her ex-partner and said that they were an “on-and-off couple since high school”.

  3. The complainant was asked what happened on Thursday 7 April 2016. She replied that “he (the applicant) took me to Rookwood Cemetery, he abused me, um, I’ve got choke marks here. And he, I don’t know what this is, but I think it’s his hand. Um, and he punched me on my leg”.

  4. She was then asked why she went to Rookwood and she gave the following reply:

“Um, I don’t know, to be honest. He said that he wants to build a ditch for me, ‘cause he says that I lied to him, I fucked up his life. Um, it’s all my fault, everything’s my fault. Ah, and he then, he says that he loves me, that’s why he’s doing it. But I don’t get why.”

  1. The complainant was asked what happened when she and the applicant first got to Rookwood and stated, “Um, he was just, he was just screaming at me. And then he threatened me about killing me”. She was then asked “what did he actually say” and she gave the following response:

“He said, ‘I’m going to build a, I’m going to bury you alive. I’ve got a knife right here. Um, I’ve got a shovel in the back of the car’. And then I just started crying ‘cause, ah, ah, I didn’t … I don’t know what happened.”

  1. She was then asked “how did the injuries happen” and she responded as follows:

“Um, he, and then he started getting abusive because I couldn’t answer, because I was crying. And then he started blaming me, and then he, he said, um, ‘If you don’t have sex with me, or if you don’t give me a blow job, um, I will kill you.’”

  1. The complainant was then referred to marks around her neck and she stated “… and then he tried to hide it, so he, he kissed me there. But you can still see that’s his thumb there”. She stated she got the marks around her neck when she was on the passenger seat “and then he just choked me ‘cause I wouldn’t say a word, I wouldn’t answer him”.

  2. The complainant was then referred to marks on her right arm and she stated that happened because the applicant thought she was texting someone “so he grabbed me, he pulled me”. She then identified the marks on her right arm and around her neck, referring to a circular one on her neck as the one where he tried to kiss her to cover it up.

  3. She was then asked whether there was anything else she could tell the interviewer about what happened on Thursday 7 April 2016 and she replied:

“”Um, and then he, after that he was just, it was a fight. Ah, how do you say, he was just arguing with me about how I wasn’t a good girlfriend to him for a long time. Um, he’s losing all his friends because of me. O.K.”

  1. She was subsequently asked the same question and she replied “Um, well, he spits at my face. I don’t know what, he thinks I’m disgusting now, he never used to, he was never like that.”

  2. The second interview which took place two days later was more extensive. Early on in the interview, the complainant said that when she met the applicant on Thursday 7 April, “he was calm at first, but then all of a sudden, 5 minutes within the conversation, he just went mental”. She said that he was “emotionally abusing” her, and that he said to her “you lied to me, you’re the dirtiest slut I’ve known, you’ve cheated on me” and that “he said a lot of things that I, I’ve never done”.

  3. The complainant said that the applicant “got angry because he saw text messages from a guy I’m going on a date with on Friday” and that was when the choking and the hitting started. She said that he said that he was going to bury her and they would “go to the cemetery” and then “he drove all the way to Rookwood Cemetery”. She described what then occurred in the following terms:

“He just started yelling at me. I don’t know what I’ve done wrong though. And then he started, he started slapping me. He, he pinched me across the, he pinched me across the leg and then started punching me there and I, and I was like, Stop it, this is not you, why are you doing this, because you’ve, and then he says, For the last 3 years you’ve fucked my life, no-one wants to be with me, um, you’ve ruined a lot of things for me. I said, No, I haven’t, I haven’t done anything, I’m trying to protect you, but he doesn’t seem to think that. And then he just went mental and started saying, I’m going to bury you in that ditch. Um, the, and then he started going, he, and then he started choking me, and then, um, he, he drove to a crematorium, the other side of Rookwood Cemetery, and, um, he parked the car there, and then he was just screaming, yelling and just abusing me, um, and I couldn’t stop crying. Um, and then he started making personal taunts about my parents, which hurts.

Yeah. He started calling my dad a dumb cunt and my mum an Asian slut that doesn’t deserve anything. Um, and then after he, he was like, I know you’re horny, and I’m, I’m saying, No, I’m not, why would you think that. Because, um, I am, and I want a blow job, if you don’t do that, I’m going to kill you. Um, and then I said, No, and then he threatened me with a knife, but I don’t know if there was an actual knife there. Um, and then he said there was a shovel in the back of the car, but I don’t even know if that was there, because I was too scared, so, ‘cause of his face, he just went men, like, he was in a rage. I’ve never seen him in that rage. Um, and then the second time he asked me, he hit me on my leg and pinched me, and then he choked me, and then the third time I didn’t want to go through it again, so I just did it. And he knows I don’t like doing blow jobs or, and then I, I kissed him as well, and then, um, on my neck, he tried to cover the mark, the, so he, um, kissed me here and there was, like, a teeth mark. I don’t know if it’s still there, but, yeah. So he can, um, he can say it’s a hickey or something.”

  1. The complainant said that thereafter the applicant “cooled down” a bit, but then “he started going again, he started, um, yelling again, and then he cooled down”, and then dropped the complainant at a train station.

  2. Subsequently in the interview, she elaborated on what occurred during the incident with the applicant on Thursday 7 April. She repeated her statement that he “went ballistic” and said that he was accusing her of seeing other guys and then changing his mind and saying that he didn’t care if she saw other guys. She said that it was like he didn’t know what he was thinking.

  3. She said that this occurred near Barker Road in Strathfield and then the applicant stopped at a golf course in Strathfield and then drove to Rookwood Cemetery. She thought that they stopped at the golf course for “about 10 minutes, because he was screaming and screaming”. She said that she “let him scream for a little while, and then he said ‘Why don’t you talk’. I tried to, and then he spat on me.” She said that he made the threats about killing her and “the chocking started” when they were driving to Rookwood. She stated that he said “I want to buy [sic] you alive, bitch, um, because no-one needs to go through your shit anymore”. She said that was when she started crying. She said that the applicant had “a serious tone to the point where he looked like he was about to do it”.

  4. She said that they drove around inside Rookwood cemetery and that the applicant was slapping her on her leg and pinching her at the same time. She said that he was driving with one hand and “just hitting, hitting”. She said that she tried to move onto the other side or go to the back but he grabbed her right arm and it hurt.

  5. She said that he drove to the crematorium and parked the car. She then gave the following answers concerning the choking:

“Q185   So you mentioned that he was choking you.

A   Uh-huh.

Q186   Can you describe that to me.

A   Um, ‘cause I wouldn’t answer ‘cause I was crying - - -

Q187   Yep.

A   - - - he was like, Answer. Um, he started screaming and then he just went like that, or, um, um, yeah, for a while, like, 5 minutes, and then I tried to take him off, and then he stopped. And then he says, That’s how much pain you’ve given me.

Q188   OK. So just for the recording, you’ve described - - -

A   Yep.

Q189   - - - a hand around your neck. Is that right?

A   Yep.

Q190   Or you showed me, sorry, a hand on your neck.

A   Yeah.

Q191   Can you describe, like, how did, how did that make you feel? What were you feeling at the time?

A   Um, I felt like, um, I felt like I was about to lose my breath.

Q192   Uh-huh.

A   ‘Cause, to be honest, I couldn’t breathe - - -

Q193   Yep.

A   - - - um, properly, and then, um, he stopped, and then he started pinching me again, and then, um hurting my leg again.

…

Q198   Yep. OK. Um, and how long did he have his hand on your neck?

A   Ah, I think around 5 minutes.

Q199   About 5 minutes. OK. Um - - -

A   But I didn’t understand what he was saying. He was just yelling and yelling …”

  1. The interview then dealt with the alleged sexual assault:

“Q208   Then he said, I know you’re horny.

A   Yeah.

Q209   And you replied?

A   Um, No, I’m not.

Q210   OK. And so he’s then said, I am, if you don’t do that, I’m gunna kill you. What, um, what was he referring to?

A   Um, a blow job. He wants, he always wants me to give him a blow job.

…

Q213   What were his exact words that he said?

A   If you don’t give me a blow job, I’ll kill you. And then the second time he says, um, If you don’t give it to me, I really will kill you, and then the third time, I’ll just break up with you, not kill you, I’ll just throw you there. That’s all.

Q214   OK. Um, so after he said it the first time, um, If you don’t do that, I’m gunna kill you. What did you do?

A   I said, No.

Q215   OK.

A   And then he went ballistic again, spat on me, um, hit me. And then he was like, Why, I don’t get why, you would always want to do that, dah, dah, dah. And then, and then he asked a second time, eh, that was 5 minutes later. And then I said, No, again, You know I don’t like doing that to you. And then he says, Just kiss me then. Um, I didn’t even want to do that.

Q216   Yep.

A   But the third time if felt like I had to.

Q217   OK.

A   So I did that.

Q218   Why do you, why do you say you felt like you had to?

A   Um, his tone started getting more angrier and angrier and he was being, um, serious.

Q219   Um, when you say he was getting serious, what do you mean?

A   Yep. Like, he wanted to kill me, he wanted to actually choke me again, um, so I just did it. I just went on top of him and just kissed him. Um, and then he kissed me and he bit my neck so he, no-one will see his, um, fingerprints. And then, and then he asked, ah, and then, um, he said, Are you gunna give me a, a blow job now. And, and I said, OK, I’ll do it.

…

Q227   Can you describe what’s happened, um, so he’s asked you the third time to give you the blow job, and you’ve agreed? Can you then describe what, what you’ve done, what’s happened?

A   Ah, so I gave him the blow job, but I didn’t really want to I, um - - -

…

Q230   OK. Can you describe exactly, like, the actions that you’ve done, what you’ve done?

A   Um, so I was, with the blow job or - - -

Q231   Yeah.

A   Yeah. So I knelt down. He took all my clothes off, and I knelt down, I knelt down, I knelt down, um, and then I started suck, sucking him, and then I was gagging a lot.

Q232   OK. When you, what part of him were you sucking?

A   Um, his penis.

Q233   OK. With, what were you using?

A   My, my mouth.

Q234   OK. Um, so you said he took your clothes off?

A   Uh-huh.

Q235   Did you try and stop him taking your clothes off, or how did that come about?

A   Um, when he was kissing he was just taking my shirt, he only took my shirt, shirt off, not my pants.

…

Q237   Yep.

A   And then I couldn’t do it anymore. And he was timing, he was, he was like, you only did it for 9 seconds.

…

Q241   Uh-huh. And then what’s happened?

A   And then he asked me to do it again.

Q242   Yep.

A   And then I said, No, I’m not gunna do it again. And then people, um, people started coming, so I went in the back and got myself dressed.

Q243   OK.

A   And then, um, he was angry again. And then he called [sic] down and then dropped me at the station.”

  1. She described her emotional state following the incident in the following terms:

“Q258   OK. Why do you say that you were happy?

A   Um, because everything was, I don’t know, everything was back to normal after the drive here, he was happy again, so I was happy, but then inside, I’m not.

…

Q264   OK.

A   So he went there [to an area in Rockwood Cemetery] and then he drove past and went back, um, to the main entrance, and then he says, I’ll drop you, I’ll drop you to the station. So he did that, and then he felt, um, what is it, he changed his attitude straight away and then said, Oh, I’m fine again, Oh, let’s get back together, let’s work on our issues, and, um, if you don’t give me the two, ah, things I want - - -“

  1. She was subsequently asked whether she had told anyone about the incident and she said that she told her friend and her aunties and that her aunties told her to tell her mother and father, so she “told them last night”. She identified the two friends she told as those who had come with her to the previous interview, Ms B and Ms D.

  2. She said that she told her aunts the day before the interview (10 March 2016) when they saw the bruises and asked her what had occurred. She identified the name of the aunts, Aunt B and Aunt P.

  3. The complainant agreed that she sent a text message to the applicant on the night following the incident which stated “Goodnight I love you”. She described her emotional state at that time she send the text message in the following terms (Q320 and 321):

“… I was thinking about what happened on, ah, in the afternoon. It kept on replaying, because my body started hurting.

…

So and then I started crying, and then I felt like I didn’t deserve to live anymore. That’s how I felt. And I, and then also, I also felt that I wasn’t good enough for him, so I wanted, yeah, so I wanted it over and done with, but I don’t know how to say it, because he’s gunna just, he will take things out of proportion and then he will blame everything on me. But he thinks he won’t, because he’s, he’s very controlling and possessive, but he doesn’t believe he is.”

(ii)   The evidence in chief

  1. At the outset of the complainant’s evidence, the electronically recorded interviews were played to the jury and the disc tendered.

  2. Following the playing of the first recorded interview the complainant agreed that she went to the Quakers Hill Police Station with Ms D and Ms B on 9 April 2016. She agreed that after the interview, the three of them drove to a park near the complainant’s home and on being asked about the conversation in the car she said “they asked me – they didn’t know that he was doing this to me – abusing me, so I told them this isn’t – he’s done this before – plenty of times” . She said that one friend asked her if the blow job was consensual and she said she told her no, and that she did not like “doing blow jobs”.

  3. The complainant also said that when she went to the police station on 11 April she met a Detective Penny Allen and told her that the applicant said that if she didn’t give him a blow job, he would kill her and that he forced her to give it to him.

  4. The complainant gave evidence that she knew the applicant as he went to her brother’s school. She said that “[h]e became Facebook friends with me in 2011 as well, and from then on it was Facebook chats”. The complainant said that she would see the applicant at parties but the next time they had contact was in 2013 at ‘schoolies’.

  5. The complainant was asked whether there was an occasion when the connection between her and the applicant was “more intimate than simply talking” and she said that there was an occasion, “there was alcohol involved so there was kissing and then touching, and then it led to sex”. She said that it was penile-vaginal sex and it was consensual.

  6. The complainant stated that in 2014, she and the applicant “casually hooked-up” but it was “only … five times”. She explained that “hooked-up” referred to “casual sex”, which again was penile-vaginal sex.

  7. The complainant said that in 2014, she only contacted the applicant through Facebook and saw him randomly. She said that the Facebook contact increased in early 2015.

  8. The complainant then gave evidence about the incident the basis of Count 1 on the indictment. She said that on 2 or 3 June 2015 she agreed to meet with the applicant that afternoon. She said that they met in a study room in the Law Faculty of the University of Technology Sydney (UTS) around 5.30pm.

  9. The complainant said that they were “just studying” but after a few minutes the applicant said “I can’t wait to take your clothes off”. She said that she thought at first it was a joke but then he went to a chair in the corner and said “I’ll wait here until you’re ready”. She said that she went to him and they “started making out, kissing and stuff”. She said that he put his hand on her breasts and started biting her breasts after he took off her clothes. He then asked if he could have a blow job and the complainant said no.

  10. The complainant stated that what had happened up to that occasion was consistent with the kind of sexual activity she had consensually with him from time to time. However, she stated that she “would never give him a blow job”.

  11. The complainant was then asked what happened after he asked her for a blow job and she gave the following answers:

“I said ‘No’. And then he said, ‘Let’s go on the floor.’ So we went on the floor. We – I was on top of him. We were still kissing. He started to take off this [sic] clothes, and then he started to take off his pants. He – he asked again. ‘Can I have a blow job.’ I said, ‘No. I don’t like doing a blow job.’ And then he said, ‘Can you just do it? I’m really hard.’ I said no again. He put his hands on my head – sorry. He put his hands on my head and forced my mouth – rammed – forced – forced his penis in my mouth using both hands to ram it down. It went for – I remember it went for around five minutes. I tried to get it – he was too strong.

…

And then I tried to pull away, but he kept on going and going, and it lasted for five minutes. And then after he let go and asked me to lick his balls, I didn’t know if he’s going to be forceful with that, so I just did it in case something else happened.”

  1. The complainant said thereafter the applicant “went on top” of her and started to have penile-vaginal sex. She stated that she thought “okay, let – let that happen because that – I wanted to forget about all the blow job situation”. She said that after the penile-vaginal sex finished, the applicant asked her if she liked it and she said “Yeah, it was fun, but I don’t like doing blow jobs”. She said that the applicant then started laughing and they walked to KFC and had dinner and then went home.

  2. The complainant said that she and the applicant “started officially dating” about a month later in July.

  3. The complainant was asked whether the study room in which her and the applicant had sex in “had windows to look through”. The complainant said that “there was [sic] windows, and the light was on, and then he turned it off so no-one will see us”. The complainant was asked whether there were people walking past the study room when they were having sex. She said that they “checked and there was no-one”.

  4. Thereafter, the complainant gave evidence that the applicant took her to dinner at an establishment called “Ettamogah Hotel” in Rouse Hill. She said that he asked her to marry him and she was ecstatic and said yes. She stated that between the time they had had sex in the UTS study room and when he proposed to her, there had been no other instances of forced sexual conduct.

  5. The complainant then gave evidence in relation to Count 2. She said on the evening of 15 or 16 September, the applicant agreed to go with her to a family gathering at the Shanghai Night Restaurant in Ashfield (the Ashfield restaurant). She said that she came with her family and when the applicant arrived he didn’t want to come in, so she “went to the car to him, and then he started screaming” at her and asked her why she was lying. She said that she told him that she was not lying to him and he kept on saying, “Yes, you are. People are telling me you’re lying to me”. She said that the topic that she was allegedly lying about concerned an allegation of her cheating with a man.

  6. She said it was about a guy named Jeff.

  7. She said that the applicant then started driving around Strathfield and went into a back alleyway and asked her to give him a blow job. She said “no”. He said “if you live [sic] me, you would give it to me”. She said that he then “started taking off his pants” however, “he wasn’t erect yet or anything”. The complainant said that after the applicant took off his pants, he grabbed her by her shoulders and her head and “rammed” her mouth “down his penis”. She said that he told her “I know you like seafood. Say hello to seafood.” She said that “because his penis wasn’t erect, he was getting angry” and said “suck me off harder, bitch” and “I’ll break up with you if you can’t do it more”. She said that he was holding her hair and ramming her head down.

  8. She said that after that occurred “because he was still getting erect”, he told her he wanted to break up and said “I’m done with your crap”. The complainant stated that she replied “I’m done with you as well”. The complainant said that the applicant then drove her and at a traffic light which was red she opened the door and walked off.

  9. The complainant said that she could not recall that the applicant made any threats to her whilst he was forcing her to perform oral sex.

  10. The complainant then gave evidence concerning Count 3. She said the day following the last incident, the applicant texted her and asked her to come and talk to him. She said that she agreed and met him in an alleyway near Strathfield Station. She said that he started yelling at her saying “Why are you lying to me? Why are you cheating on me?” She said that she told him that she was “not doing any of them” and that they had already talked about it. She said that the applicant asked her “who else are you sleeping with” and she responded “I’m only sleeping with you”. She said the applicant replied “no, we’re just hooking-up”. She said “no, we’re having sex. You’ve come to me so many times” and the applicant replied “I don’t fit”. The complainant said “Yes, it does”.

  11. The complainant said that after that conversation the applicant drove to Rookwood Cemetery and visited his grandparents’ grave. She said that “he went on again about cheating and how it doesn’t fit, or anything”. She said that he then started driving again and saw a friend from his law group at UTS. The complainant said that the applicant dropped the friend at Strathfield Station. She said that they then drove to a park near the golf course at Strathfield and he demanded a blow job. She then gave the following evidence:

“Q.   Okay?

A.   And he – he told me he had a shower so it’s clean.

Q.   And what happened then?

A.   I still said, ‘No’.

Q.   And what did he say?

A.   He said, ‘Suck me off, bitch.’

Q.   Then what happened?

A.   He pushed me – he pushed me, and then he grabbed my shoulder so I can start to go close to him.

Q.   Okay – and where were you seated at this stage?

A.   We went – he parked the car at the Park, and then we went – he went in the backseat, so I went in the backseat because I thought he wanted to talk. And then he – he – that’s the time when he asked for a blow - job. It was in the backseat of the car.”

  1. The complainant said that after that incident occurred the applicant dropped her off at the park. She said that she only had her phone with her because her bag was left in the car. She said that the applicant subsequently returned and became angry again because she had called a guy named Mike.

  2. The complainant said that she and the applicant then went to a pub near Homebush Station and he then dropped her off at the Station and went home.

  3. The complainant was then asked what the next contact was she had with the applicant and answered “it was every day” because they “were still together”. She said that there was also some social media contact.

  4. The complainant then gave evidence about Count 4. She said that she recalled going to lunch with the applicant at an establishment called “Outback Jacks” in Strathfield on 19 October 2015 (the Outback Jacks incident). She said that they were “just having a nice lunch” and they were “just talking”. She said a person called Rob texted her and the applicant asked her “why are you talking to this man?” She said she replied “Don’t worry – we’re just friends”.

  5. The complainant said the applicant then poured a jug of water on her. She said she was very embarrassed so she walked out of the restaurant. She said that the applicant chased her outside and demanded that she pay for the lunch. The complainant said that she and the applicant were then driving home when the applicant started spitting in her face. She said that a person from her gym called her asking her to renew her membership. She then gave the following evidence concerning Count 4:

“Q,   Which suburb?

A.   That’s Strathfield. He – he started screaming at me, ‘Don’t tell me what to do, slut’. Because I told him, ‘Can you stop screaming at me? Can you stop screaming at me?’ He didn’t want to listen, so he said, ‘Don’t tell me what to do, slut.’ After that, he chucked another bottle of water and spat in my face again, and he threatened to hit me with a tennis racket. I remember there was a tennis racket in the back seat of the car. It was a blue one. It had white strings, and then he – and then he – we were on Wallis Avenue still. He parked the car. From memory, he parked the car. He stopped it, and then he starting spitting at me and pinching my leg, and then he wanted me to answer him. From memory, he wanted me to answer him, but he wouldn’t let me talk, so – and then he was telling me, ‘You have to respect me. You don’t respect me’ and all that stuff. Then – then after that he said, ‘I’m not kidding. I’m going to hit you with the tennis racket.’ I tried to get out of the car. He locked it straight away, and then from memory, I had my bag on my left side, and he grabbed me on my right shoulder, and then I saw the tennis racket. He started beating me with it, and it was, - it was on my lower back, I remember.”

  1. The complainant said she told the applicant that “it’s hurting”, but he wouldn’t stop until he hit her with the tennis racket for the fifth time. She said that he then “chucked another bottle of water” at her and she got out of the car and “ended up meeting” a female friend at Strathfield. She identified the friend as Ms N.

  2. The complainant said that she knew Ms N because they were in the same class at high school and had been friends since Year 7. She said that after school she had “very frequent” contact with her and that they used to go out every Thursday and Friday until about 2017. She said that they were very close friends but now just saw each other “from time to time”.

  3. The complainant said that she met Ms N at a park in Wallis Avenue. She said that they were just talking and catching up and Ms N asked her “why are you wet?” She said that she responded “Joe did this to me” and Ms N replied “why aren’t you going to break up with him? I told you to break up with him”.

  4. The complainant said that she told Ms N that the applicant poured a whole jug of water on her and spat on her face. She said that she did not tell her about the tennis racket as “it was embarrassing”. She said that there were no visible marks from the tennis racket.

  5. The complainant said that a “selfie” of her and Ms N was taken around 90 minutes after the applicant threw water on her. The complainant said that at the time she spoke to Ms N and the “selfie” was taken, she was “still very wet” because her “clothes were very wet”. She said that Ms N even said “your clothes are still wet”.

  1. The complainant then gave evidence concerning the incidents the subject of Counts 5 and 6. She said that on 26 October 2015, she and the applicant went to “Outback Jacks” again. She said that she was talking to the applicant about her “plans going overseas” and that “he wasn’t particularly happy that I wanted to go overseas”. She said that the applicant told her that he wanted to kill her and rape her and he “started to demonstrate how he wanted to kill” her. She said that he used a steak knife to demonstrate how he was going to cut her open. She said that he also told her that he wanted to bury her alive as well, and rape her. She remembered that she was “really scared”.

  2. The complainant told the applicant that she could not eat any more and the applicant said “Let’s go for a ride” and they drove to Rookwood Cemetery. The complainant said the applicant again accused her of cheating stating, “You deserve to die. You should go to hell”. She said that the applicant saw a man digging a burial site and then said he was going to put her there after he raped her and killed her and then buried her. The complainant said that she tried to talk to the applicant but he yelled at her “even more and more” and started choking her. She said that he was driving, so he used his left hand because the complainant was on the right side. She stated that the applicant repeated that he was going to rape her and kill her. She said that he then choked her, and started spitting on her face and pinching her leg again.

  3. The complainant was then asked what happened next and she said that “from memory he asked if he can have a blow-job”. She said “no” and the applicant “was okay with it”.

  4. The complainant then said that she and the applicant “started kissing”. She said that she “just did what he wanted” her to do because she didn’t know what he was “going to do next”. She said that the applicant took her clothes off. She was then asked the following questions:

“Q.   What were you wearing?   

A.   I was wearing a grey – another grey maxi dress.

Q.   This was a separate one?

A.   This was a separate one.

Q.   Similar design or - -

A.   There was a pattern on the dress, from memory, and it was longer and there was sleeves.

Q.   After he took off your clothes, what happened?

A.   He wanted to finger me, so digital penetration. He – he was going to put three fingers. I told him, no, I didn’t want it. And then he said, ‘Trust me. It won’t hurt.’ So he ended up putting it in, but it hurt a lot.

Q.   When it hurt a lot, did you say anything?

A.   I told him to stop.

Q.   When you told him to stop, what did he do?

A.   He actually stopped, and then put me on top of him.

Q.   When he actually stopped, did he stop straight away after you told him to stop or not?

A.   I can’t remember, but he did stop. That’s all I remember.

Q.   What happened after that? What was the next thing that happened?

A.   From memory we were – I was on top of him. We were kissing. He started biting my breasts, my neck, because he choked me before - -

…

Q.   Did you say anything to him?

A.   I don’t – I don’t recall. I don’t remember. But he was biting me a lot, and it was very painful from memory, because I remember after that, I got bruises from that. Then he started biting my neck. Like, giving me a hickey, but it hurt a lot. I didn’t like it at all. I just had to go with it because what – I didn’t know what he was going to do next, you know? He threatened to kill me, so what’s next? He might actually kill me. I don’t know.

Q.   Now, in your mind, why did you let him do the things that he was doing to you at that point in time?

A.   In my mind – because I was scared. If he was actually going to kill me, I might as well do what he tells me to do, or else – I already know he’s going to – he’s probably going to bury me in a ditch. Who knows?

Q.   When he inserted his fingers into your vagina, and you initially said no, this is before he said, ‘Trust me. It won’t hurt.’ Were you consenting to him putting his fingers in your vagina?

A.   After – after he said, ‘Trust me. It won’t hurt.’ Yes.

Q.   Why were you consenting to that?

A.   Because I was scared. I didn’t know what he was going to do.

Q.   If you weren’t felling scared, was that the kind of thing you would consent to? Three fingers being put in your vagina?

A.   No.

…

Q.   Now, just going back, and I’m sorry to jump back now to the point where he’s biting your neck and breasts. You’ve said that this is causing you pain. Did you say anything to him at that stage?

A.   I don’t remember to be honest. I really don’t remember. But I pushed myself off, and then he started talking to me about getting married and stuff.

Q.   Then what happened?

A.   And then he put me back on top of him, and we started having normal sex. So vagina and penis sex, and then he – from memory, he – he ejaculated.

Q.   What [sic] did you allow him to have penile/vaginal sex with you at that stage?

A.   At that stage I just – I just did whatever he wants me to do. I felt like – well, if I don’t do what he wants me to do, is he going to actually kill me? Because he’s already threatened me. I might as well do what he wants.

Q.   Did you in your own mind feel like having sex with him at that stage?

A.   (No verbal reply)

Q.   Did you say anything to him when his penis was in your vagina?

A.   Not from memory.

Q.   Do you recall him saying anything?

A.   He – he said he couldn’t wait for me to be his wife.

Q.   Was there anything else that you can recall while you’re having penile/vaginal sex?

A.   I can’t recall anything else. That’s all I remember him saying to be honest.”

  1. The complainant said that after that the applicant dropped her back to the station at Flemington and she went home.

  2. The complainant said that the next day her body “started turning blue”, she “started getting a lot of bruises” on her neck and she wore a scarf every day to work. She said that it was “embarrassing”. She also said that her “breasts were purple”. She said that she took photos of the bruising using her “old HTC phone” but the next time she saw the applicant “he wasn’t happy” that she took the photos, so he deleted them. She said that at the time the applicant said “Why did you take these photos? I don’t want anyone to know I did this” and she replied “Then don’t do it”. The applicant then said “I’m going to delete them, and don’t tell anyone I’m doing this to you”.

  3. The complainant said that she ultimately gave the HTC phone to the police for investigation.

  4. The complainant said that at that stage the sexual nature of her relationship with the applicant ended.

  5. The complainant gave evidence that in November 2015, there were two meetings between her and the applicant’s respective parents, the second of which was also attended by her and the applicant. She was then asked about extracts of Facebook communications between her and the applicant in November 2015 which became Exhibit E in the proceedings and which related to the meeting. The exchange of messages was in the following terms:

Joey Daabs:   I actually liked you

[Complainant]:   They why did you tell your parents that you led me on?

That hurt me. I thought everything was real

Joey Daabs:   Because they didn’t expect me to date someone like you

[Complainant]:   That hurt me more than anything else you said that night. I was so angry.

Joey Daabs:   You lied about everything

We never had sex

We talked about it how it didn’t fit

[Complainant]:   Why couldn’t you just tell that to them.

Joey Daabs:   I did are you serious

So you know we didn’t have Sed [sic]

[Complainant]:   No not about that! That’s not what I am worried about the fact that you said you led me on for a long time. Why couldn’t you say that you did like me

Joey Daabs:   Because my feeling were not as strong as yours

I felt sorry for you tbh because every said satu [sic] away from you

[Complainant]:   I’m confused. So you kept going back to me all the time because you felt sorry for me. Weren’t you the one that always called me saying you missed me and I’m your everything. Who would say that? Why couldn’t you be honest with me. I would have been fine with it and be friends with you.

Joey Daabs:   No joke every said you were a waste of time so I didn’t want to be mean

[Complainant]:   But still care about you a lot and make sure you’re okay.

Joey Daabs:   What?

[Complainant]:   That was to the other part I was writing to the last message

  1. The complainant said her response “Why couldn’t you just tell them – tell that to them” was not responsive to the proposition that they “never had sex”, rather was responsive to the applicant’s statement “they didn’t expect me to date someone like you”. She said that the applicant’s statement that “we never had sex” was a lie. She said that was not the first time the applicant said that they had never had sex, but “we’ve had sex so many times – and he knows that”.

  2. The complainant was then asked further questions concerning the complaint she made about the incidents on 7 April 2016 which were Counts 7 and 8.

  3. She said the day following the incidents she was on a work break with Ms B (they both worked at Kmart). The complainant told Ms B that she “fell down the stairs” and Ms B said “that doesn’t look like a fall”. She said that Ms B made that comment in relation to the bruising on her arm and there was also a bruise on her neck. She said that Ms B said “I don’t think you would fall like that” and that she then ended up telling her what had happened because Ms B had said “That [the bruises] looks like fingerprints” and “I would know if that’s a fall or not”. She said that she only told Ms B about the applicant hitting and chocking her. She did not tell Ms B “about the sexual assault part because it’s embarrassing” and she did not want anyone to know.

  4. The complainant said that her Aunties found out on the Sunday, 10 April 2016. She told her Aunt P about “everything else” except the sexual assault.

(iii)   The cross-examination

  1. At the outset of her cross-examination the complainant was referred to her statement in her second interview that her “intimate relationship” with the applicant commenced in 2014, which she later in that interview clarified as commencing in 2012. In cross-examination, she said that she had made an “honest mistake”. She then stated that it started in 2013.

  2. The complainant agreed that she broke up with the applicant in November 2015. However, she said that even after that, she and the applicant had a sexual relationship, stating that occurred “only for a month” in March 2016.

  3. The complainant agreed that there was no Facebook contact between her and the applicant from 30 October 2011 until March 2015.

  4. The complainant was asked about evidence that she gave in earlier proceedings which took place on 7 June 2017. In her evidence from that occasion, she said that she and the applicant were “sleeping together for five years”. She said that was true.

  5. In cross-examination, the complainant asserted that she mentioned the oral sex and sexual assault in the first interview on 9 April. She agreed that she said nothing about the incidents the subject of Counts 1-6 saying she did not speak about them because the interviewer only asked her to “speak about the one that happened in April”.

  6. She was then asked about the incident which took place at UTS. She agreed that there were students coming in to use the facilities and study and she did not know whether or not the room was locked. She said that both she and the applicant were naked and agreed that she had “full consensual sexual intercourse”, referring to penile-vaginal intercourse. It was suggested to her that this did not occur. The transcript indicates that there was no verbal reply to this question.

  7. The complainant agreed that she had not seen the applicant for two to three weeks prior to the incident occurring. The complainant was then asked about her relationship with the applicant up to June 2015. She agreed she was seeing him “on a casual basis” throughout 2014 and in early 2015. She agreed during that period that there was digital penetration and the applicant would touch her breasts. She denied that she would touch his penis. She was referred in that context to a statement she made on 22 July 2016 in which she said she would “touch his penis”. She agreed that was correct.

  8. The complainant agreed that she sent the applicant a link to an article headed “Sexual Science: How sex cures headaches, hangovers and heartbreak” which became Exhibit 1. She said that she sent it to him in September 2015.

  9. The complainant was then asked about the “Outback Jacks” incident. She agreed that there were three occasions on which water was thrown over her. She agreed that she was “drenched”. She agreed that she saw Ms N within 30 minutes of having the water thrown over her and agreed that a “selfie” was taken. That “selfie” became Exhibit 2.

  10. The complainant said that at the time, her relationship with Ms N was “very close”.

  11. The complainant was then asked about some Facebook entries which were tendered and became Exhibits D and E. She was referred to a Facebook message she sent to the applicant on 1 May 2015 that stated, “[H]ow am I going to get to bloody Strathfield, when all the taxies are booked and the train station [is] 20 minutes away. I’m sexually frustrated now.” and the applicant’s response, “[J]ust come find a way. I have a free house till 10.30. I am horny”. She was also referred to a subsequent message she sent, “Can you just fuck me in a park? I’m in the park sex?” and the response “Okay come to my house. There’s a park right next to it”. The Facebook conversation continued as follows:

“[The complainant]:   I live next to a park too. Why do I have to travel. You’re the guy; you should travel not me.

Joey Daabs:   I have to babysit tonight. My little brother. Can’t leave them

[The complainant]:   Ahhhhh. Ok. What are you doing tomorrow night? And im not having sex with you when you’re [sic] little brother is around.

Joey Daabs:   They are asleep. He is three. I can’t till two week [sic]. Have things scheduled. Are you coming or not

[The complainant]:   At this right moment! I would love to but I rather have phone sex with you at this right moment than travel that far and get there late. And then go back home, its [sic] such a trek.

Joey Daabs:   It will be worth it.

[The complainant]:   Why can’t you come to mine after your parents come home. We will just have car sex. I’m not too fussed where I have sex with you. It [sic] only a 30 minutes [sic] drive. Man I need by ps.

Joey Daabs:   Don’t worry good night.

Joey Daabs:   Can you go away

[The complainant]:   Ok, you horny bastard. I was just saying.”

  1. The complainant said the messages were “just a joke” and that she was “out with friends”. She said that she was “just joking” but the applicant “believed it”.

  2. The complainant was then referred to Facebook messages on 9 June 2015, where the applicant sent the complainant a message, “Fuck me”, and she responded “Yeah, it will happen. Not today. I’m going to work. Tomorrow???” to which the applicant responded “really need a fuck” and the complainant replied “Haha. If you’re really down for it. Come to mine. I actually start at 4.30”.

  3. The complainant said that she “wasn’t serious” and that the messages she sent were “just a joke”. However, she denied the suggestion that the applicant had not had penile-vaginal intercourse with her at all.

  4. The complainant was then referred to a Facebook message she sent on 15 September 2015 in which she asked the applicant if he was a virgin. She was asked why she asked that if the applicant had had penile-vaginal intercourse with her and said that it was because the applicant always thought he was a virgin. In that context, she described the applicant as “delusional” saying “he still thinks that he’s a virgin no matter what. He’s told everyone that he’s lost his virginity, and then when he comes to me, he tells me he’s not”. She agreed that she sent the Facebook message after the occasion the subject of Count 2. She also agreed that it was after incidents the subjects of Counts 1 and 2 that she sent him the link to the document “How sex cures headaches, hangovers and heartbreak”. The exchange was in the following terms:

“[The complainant]:   Yes. And I’m going to be your wife.

Joey Daabs:   Love you

[The complainant]:   Baby then it’s going to happen naturally and we’re going to have kids naturally. Don’t argue with me. I want to have children.

Joey Daabs:   I do to [sic]

[The complainant]:   So now you want kids naturally? Baby are you really a virgin? I’m so excited. I can’t wait to have children.

Joey Daabs:   yes”

  1. It was again suggested to her that her evidence regarding the sexual allegations was “a complete fabrication”. She asked “How is that”. She stated that she was “not denying anything”. She was asked whether she ever said to the applicant “Look, I love you dearly. We’ve got a good relationship. I can’t take the oral sex. If you persist with that, it’s all over. I’m moving on” and agreed that she never made such a remark and there was “not a word” of it in the Facebook messages.

  2. The complainant was then asked about the Facebook messages on 15 September 2015 in which the applicant said to the complainant that he loved her and she responded “I love you too”. She agreed that the entries concerned posting their relationship as a “Facebook official relationship post”.

  3. The complainant was then cross-examined about the Facebook messages to which I have referred at [67] above. She repeated her evidence that her remark, “Why couldn’t you just tell that to them” was not referring to the applicant’s statement “We never had sex”. She said that she was “not a good reader” and was dyslexic, so she reads “slowly”.

  4. In a passage of cross-examination relied upon by counsel for the applicant, the complainant affirmed her evidence as to the choking which was said to have taken place at the time of the incidents the subjects of Counts 7 and 8 and agreed that on the same night she sent a Facebook message to the applicant saying “Good night I love you”.

  5. The complainant said that when the applicant choked her in October 2015, he was using two hands but in April 2016 it was “only one hand”, the left hand. She affirmed that he was using his left hand when he was driving.

  6. The complainant was asked about a Facebook message which she sent to the applicant. She agreed that it was sent in October 2015. It referred to her statement, “Okay to be honest you’re actually the best boyfriend I have had” and said it was a lie. The context in which the conversation occurred is of some relevance:

Joey Daabs:   [Complainant] i never foud [sic] you attractive from day stop telling me what i though] ][sic] you are not an attractive peson [sic]

[The complainant]:   Okay. Whatever! That’s not what you said/thought before. You know I do have good memory even for a person that is stupid.

Joey Daabs:   when did i ever call you attractive

[The complainant]:   Really? you just don’t remember, because you’re an asshole.

[The complainant]:   Throughout last year and this year. Rachel’s birthday I still remember that day even though I was talking to Geoff most of time. You kept complimenting me saying how gorgeous, the hooked up at uts, albis housewarming before every thing happened when we made official on Facebook.

Joey Daabs:   You are so full of shot

[The complainant]:   No I’m not! I guess that is how you people in your pants.

Joey Daabs:   I don’t get anyone in my pants i love how you say all this stuff on facdboook [sic] but in person you say nothing

[The complainant]:   You know what Tuesday was good and enjoyed it but you made it worse now. What all you do is criticize me so how can I say things to you? I try! You’ll bring up something else

Joey Daabs:   Honestly you are sick i sat there and said tell me what you were thinking and yopiu woidl [sic] say nothing

[The complainant]:   Yeah. Because I don’t want to say everything out in the open we’re [sic] people can here [sic] us. Okay, I bottle things up and should’ve told you. I get scared as well. In other relationships or flings I’ve been in it didn’t well end well when [we] had a civil conversation. Okay. You don’t know what I’ve been through.

Joey Daabs:   then why didn’t you tell me wht [sic] the fuck thats [sic] your problem

[The complainant]:   Because I was scared you would abuse me. What do you want me to do.

Joey Daabs:   noting [sic] just do nothing See now I [sic] 100 percent know you’re a fucking idiot. I just told you thAT i [sic] wanted you to tell me then ou [sic] say what do you want me to do

[The complainant]:   Okay. You don’t know half the guys I have dated. I just let them talk because if I say something they will abuse me that’s why I said nothing.

Joey Daabs:   who will abuse you

[The complainant]:   Some of the guys I have dated. Okay to be honest you’re actually the best boyfriend I have had.

Joey Daabs:   you just told me i [sic] abused you

[The complainant]:   No I some of the guys I have dated. I was scared that you would if I said something.

Joey Daabs:   WHAT the fuck

[The complainant]:   What I don’t go for the best guys. Okay. I’m starting to now.

Joey Daabs:   ok Come to the city

[The complainant]:   Why? You just broke up with me.

Joey Daabs:   Just come”

  1. The complainant agreed that she had had discussions with the applicant in November 2015 about her seeing a doctor and she agreed to see a doctor who specialised in psychiatry or psychology. She was asked in that context about a Facebook message she sent on 10 October 2015 in which she said “Hey. I’m very sorry for my attitude and behaviour towards you. I know it wasn’t nice at all”, the applicant’s reply “Okay we are still never getting back together. I just don’t want to deal with your shit anymore” and her response, “Okay. I’m fine with that, I guess. Its [sic] for the best. I need a break. I’m emotionally unstabled [sic]. I wish you the very best in your future”. It should be noted that the balance of the Facebook exchange was in the following terms:

“[The complainant]:   Okay. I’m fine with that, I guess. Its for the best. I need a break, I’m emotionally unstabled. I wish you the very best in your future.

Joey Daabs:   Okay thanks but don’t contact me again actually I will just block you I hope you mentally become more stable and get the necessary held you need You’re a lunatic.

[The complainant]:   Okay. Thank you as well. What? I’m being nice to you. See you make it worse by saying things like that.

Joey Daabs:   I don’t fucking care just fuck off forever You wasted my time With your bullshit Do me a favour and go fuck someone so you can get over me”

  1. The complainant said that she was emotionally unstable because the applicant abused her. She stated that he was “emotionally abusing”, “mentally abusing”, “physically abusing” as well as “sexually abusing” her. She said that is why she went to see a psychiatrist.

  2. The complainant said subsequently in her evidence that it wasn’t the applicant who wanted her to get help, but it was her parents and the applicant just asked because her mother had said “I’m going to take her to a psychologist” when their parents met.

  3. The cross-examination returned to the incident the subject of Count 1 (the UTS incident). It was suggested to the complainant that she went out onto a balcony outside the study rooms with the applicant and the complainant denied this saying that there was no balcony. The complainant also denied sitting on the balcony area at a table outside one of the classrooms where people were studying. It was put to her that they talked for about 15 minutes on the balcony and then the applicant said “I have a tutorial to go to”, and that after the tutorial had finished they went to KFC. She denied that saying it was a “lie”. However, she agreed that before she and the applicant went their own ways, they kissed.

  4. It was put to her that, after this interaction, over a period, she gave him consensual oral sex, sometimes at his request and sometimes without any prompting or questioning from it. She denied that saying it was a “lie”.

  5. In relation to Count 2, it was put to her that there was an argument outside the restaurant at the Ashfield restaurant incident. She agreed. She also agreed that the applicant accused her of lying to him, and at the end of the argument, he said that he did not wish to see her anymore. However, she rejected the proposition that nothing of a sexual nature occurred.

  6. It was put to her the incident the subject of Count 3 did not occur and she denied it.

  7. So far as Count 4 was concerned, it was put to her that no water was thrown over her nor was she hit with a tennis racket. She rejected both these suggestions.

  8. In relation to Counts 5 and 6, it was put to the complainant that there was no activity or conduct by the applicant against her that was against her will or without her consent. She rejected this, stating “no – it wasn’t with my consent”. She agreed that she did not go to the police or make a complaint, although she had said in relation to those incidents that she thought the applicant was going to kill her.

  9. In relation to Counts 7 and 8, the complainant agreed that she met the applicant at Strathfield Station at about 12.30. She agreed that he was in the family car, a Tarago, which had bucket front seats in the car which were separated by a centre console. She agreed that she was in the front left hand side of the car and the applicant was in the right hand side.

  10. The complainant denied that as they were driving, she placed her right hand on the inside of the applicant’s thigh or touched his groin area, and that after parking the car at Rookwood Cemetery, they were kissing and touching each other.

  11. The complainant denied that when the car was parked, the applicant got out and went away for a while and then came back and left her in the car. She denied that the applicant then said “look, I don’t want to see you again, this is not going anywhere” and that she then started crying and said “please give me another chance, I still love you”.

  12. The complainant denied that thereafter the applicant drove her to the nearest bus stop and he asked her to get out of the car and she refused. However, she agreed that he drove her to Flemington Station but denied that he again asked her to get out of the car. However, she agreed that she got out of the car and ran to the station because she was going to miss her train.

  13. It was suggested to her that on Friday 5 April she had a date with a person called Santiago and that she went on the date. The applicant agreed that she went on that date. She denied that the injury could have occurred on that date.

  14. The complainant was asked the following question concerning the applicant’s threats to kill her:

“Q.   Question 136 – the answer – you said, ‘He wanted to kill me. He’s - -‘ And then that answer isn’t completed. ‘Do you remember the exact words that he said when he said that?’ Answer, ‘I will – he says, ‘I want to bury you alive, bitch. Because no-one needs to go through your shit anymore.’ Question, ‘How did that make you feel?’ Answer, ‘That’s when I started crying.’ Question, ‘Okay?’ Answer, ‘And I was scared because he did not – he said – normally when he says that as a joke. And apparently he does that as a joke sometimes. It’s laughable.’?

A.   Yep.

Q.   ‘But then it was very serious. He had a serious tone to the point where he looked like he was about to do it.’?

A.   Yep.

Q.   So what you seem to be saying there, from your point of view, when these comments were made in the past you thought it was laughable; you thought it was a joke?

A.   Mm-hmm.

Q.   Is that right?

A.   Yes.”

  1. Finally in her cross-examination the complainant was asked these questions and gave the following answers:

“Q.   I suggest to you, [the complainant], that in respect of the evidence that you’ve given in this case in relation to each of the counts – that is the various incidents that you have described, there was nothing that occurred against your will, or against your consent? You can agree or disagree?

A.   I didn’t consent to any oral sex – I’ve told you that. I didn’t consent to any oral sex, but I consented to the rest.

Q.   And the relationship that you say you had with him went over, in terms of seeing him, and continuing to see him, went over a period of years?

A.   Yes, from – we – I already just told you already, from 2014 we were causally hooking up and stuff, and then 2015 we started seriously dating. And then it ended 2016.”

(iv)   The re-examination

  1. In re-examination the complainant was asked about the incidents the subject of Counts 5 and 6. She affirmed her earlier evidence that she did not consent to digital penetration, but in relation to the penile-vaginal sex that occurred thereafter she consented but she “didn’t feel like [she] wanted to do it”.

  2. She affirmed in re-examination that the relationship between her and the applicant continued from “schoolies” in 2013 until March or April 2016.

  3. The complainant was referred to her evidence in which she agreed in cross-examination that there was nothing she put on Facebook where she explicitly said “no” to oral sex to the applicant. She was referred in that context to the following exchange of messages on Facebook:

“Q.   Can you have a look on page 34, hallway down the page, under the time and date stamp 9.40pm on 16 September, and Joey Daabs, that’s the accused, sent you a message?

A.   Yes, now I can see.

Q.   Do you recognise that?

A.   Yep.

Q.   And he said ‘Suck you off now slut, bitch, pussy’?

A.   Yep.

Q.   And you said, ‘Go fuck yourself’?

A.   Yep.

Q.   And he said, ‘Okay, I am breaking up with you, happy’, do you see that?

A.   Yeah.”

(v)   Further evidence

  1. The complainant was recalled on the seventh day of the trial on the application of Queen’s Counsel for the applicant. She was asked if she knew a Mr M and a Ms C.

  2. The complainant agreed that she was at school with Ms C and was in the same social group. The complainant agreed that Mr M was “her boyfriend at that stage”. She said that both Ms C and Mr M were at “schoolies” week at Terrigal with her. She agreed that on three of the seven nights she went to Magenta, about 40 minutes from Avoca with some friends who included Ms C. She said that she did not recall Mr M being there.

  3. The complainant agreed that the applicant was not in that social group.

  4. The complainant was also asked about a school reunion which took place in 2017. It was suggested to her that she had a conversation with Ms C in which she said to Ms C, “Joe and I broke up”. She denied this.

  5. It was also suggested that Ms C replied “Yeah, I heard” and the complainant responded “I don’t know why he wants to break up with me. He’s so nice”. She denied this.

  6. She also denied that Ms C said “I don’t know” and that she replied “I hate him, he broke my heart”.

  7. In further re-examination, the complainant said that she met the applicant on the first night of “schoolies” week at a beach party at Terrigal Beach.

  8. In relation to the school reunion, she said that she could not recall having any conversation with Ms C, although she probably said “Hello. How are you”.

  9. She agreed that she raised the issues between the applicant and herself at the night with a friend Ms M but not with Ms C.

  10. The complainant said that Ms N was very close to Ms M, so Ms M heard from Ms N about the October incident. The complainant said that Ms M said to her “I heard you broke up with Joe” and she replied “Yep. That’s true”. The complainant said that she did not recall saying “I don’t know why he broke up with me”. However, she said that she told Ms M that she “hate[d] him so much” but said that she did not say that to Ms C. She said that she “didn’t even speak to [Ms C] that whole night”. She was then asked the following questions and gave the following answers:

“Q.   So, in other words, if Mr Bellanto said, ‘Not [Ms C] but [Ms M] - -

A.   Yes.

Q.   You had a conversation along the lines he put to you, you would agree with that?

A.   Yes.”

Ms N

  1. Ms N gave evidence that she had known the complainant since Year 8 or Year 9 at high school. She said that they both graduated high school in 2013 and after high school she attended UTS.

  2. Ms N said that she became aware that the complainant was enrolled at Notre Dame University. She agreed that she and the complainant would “text each other occasionally on social media applications” and that she saw her “at least once” during that period of time.

  3. She was asked about her contact with the complainant in October 2015. She recalled that she was telephoned by the complainant who said that she was in her area and that she was at Strathfield Park. The complainant asked her “Do you want to hang out?” She said that she replied “Okay. Sure”.

  4. Ms N said that she and the complainant agreed to meet at Wallis Reserve. She said the complainant told her that she happened to be in the area because “she was at coffee with Joe” (the applicant).

  5. Ms N said that when she met up with the complainant initially they “just greeted each other” because they had not seen each other “for a while” and then the complainant brought up her relationship with the applicant. She said that the complainant told her that they had “had a fight; that he splashed water in her face, and … problems they had together”. She recalled telling the complainant “[e]nd it with him. Just finish it off”.

  6. Ms N agreed that she understood that the complainant and the applicant were engaged at that particular point of time. Ms N said that the conversation took “under an hour” and towards the end of the conversation, she took a “selfie”. Ms N agreed that the complainant was smiling in the photograph but said that her demeanour throughout the time she was with her was “[h]alf distress[ed]. Half neutral, normal”. She stated that she did not notice any physical injuries or marks on the complainant nor did she observe that she was wet at all.

  7. Ms N agreed that she told the police when she gave her statement that in the first conversation over the phone, the complainant said “Joe kicked me out of his car in Strathfield”.

  8. Ms N agreed in cross-examination that she was not a close friend with the complainant and that she thought it was strange the complainant contacted her because she had not seen her since leaving school.

  9. She repeated that she saw no evidence of any water on the complainant’s clothing and no evidence of any injury. She agreed that she did not say in her statement that the complainant appeared distressed, although she reiterated that she thought she was. However, she agreed that there was nothing about her appearance that raised any alarm in her mind about the complainant’s distressed state.

  10. Ms N agreed that after she suggested to the complainant that she break up with the applicant, the complainant said that she wanted to marry him.

  11. In re-examination, Ms N was referred to a WhatsApp message between her and the complainant on 29 April 2015 but said that she did not remember the conversation and that “it was brief”.

The complainant’s mother (AFB)

  1. AFB gave evidence that in about July 2015 she became aware that the complainant was dating the applicant. She stated that she recalled that on Monday 31 August 2015 the applicant came to the front door to pick the complainant up to go out in the evening. She said that was the first time she met him.

  2. AFB agreed that on 13 September 2015 there was a family function, being a dinner at a dumpling restaurant in Ashfield which the applicant was invited to. She said that she recalled that the complainant received a call from the complainant and she left the restaurant and that when she returned, she was “no longer happy” and “upset”. She said that when AFB’s sister asked her “where is he”, the complainant did not answer.

  3. AFB said however, that when they returned home the complainant told her “he spat at me in the car” and she told the complainant “he is not good for you. Just stop talking to him”.

  4. AFB gave evidence that in about early November 2015, she made arrangements to meet with the applicant’s parents and that her and her husband met at the applicant’s parents’ house in Strathfield.

  5. AFB gave evidence that about a week later there was a further meeting between the complainant’s and the applicant’s respective parents. The complainant and the applicant were also present. She said that she recalled the applicant saying to the complainant “I don’t feel the same way as you feel about me”. AFB then said that she said “if you don’t feel the same way, then why would you put in on Facebook for everyone to see”. AFB then said that she asked the applicant “if you didn’t like her why would you have sex with her?”. She said that the applicant was “shocked” at the question and just looked at the complainant and said “what kind of person would tell her mum about her sex life?”. She said that the applicant and his mother then had an argument and he denied that they had had sex. She said that she turned to the complainant and said “so did you?” and the complainant replied “Yes we did”, saying it took place in the car. She said that the applicant’s mother “got really upset”.

  6. AFB said that the applicant’s father then asked the complainant “Did you really have sex?” asking whether she knew the difference between “oral sex and penetration sex”. She said that the complainant replied “Yes. Yes whatever”.

  7. AFB stated that the meeting ended by the complainant’s father saying to the complainant, “he does not love you” and the applicant saying to the complainant, “I don’t like you, I’m sorry for leading you on”.

  8. AFB was then asked about what occurred on the morning of 9 April. She said that she noticed the complainant had “bruises on her arm” so she asked her where did she get the bruises from. AFB said that she then said, “if you fell down the stairs why does it look like that”. She said that the complainant said that “she fell down the stairs at uni”. She said that she asked the complainant the same question later in the day and received the same answer.

  9. AFB said that on 10 April during the course of family prayers, the applicant started to cry. She said that the complainant told her that the applicant picked her up at Strathfield Station, they drove to the cemetery and the applicant said to her that he had “a shovel, in the back of his car, and he would bury her”. She said that she asked the complainant why she didn’t “get out of the car” and the complainant said “she couldn’t because he took her top off”. She said that the complainant then told her that the applicant “got really upset, so he started hitting her … saying ‘I’m doing this because I love you’”. She said that the complainant told her that the applicant “calmed down for some reason and he dropped her at the station”. In cross-examination, AFB agreed that the complainant had not said anything about a sexual assault.

  10. In cross-examination, AFB was asked if she recalled whether at the second meeting between the parents, the applicant’s father said to the complainant “[d]id Joey put his penis in your vagina?” and she said that she did not remember that being said. She agreed that she arranged for the complainant to see a psychiatrist or a psychologist “probably … in November” 2015.

The complainant’s aunt (Aunt P)

  1. Aunt P was an aunt of the complainant.

  2. She gave evidence that she was at a family function on 10 April 2016 to celebrate one of her nephew’s christenings. She said that the complainant was also present and that she observed that the complainant “had multiple bruises on her right arm”. She said that there were three bruises and it “almost looked like a hand was on her arm, or a handprint”.

  3. She said that thereafter, she had a conversation with the complainant who initially told her that she fell down the stairs but about 10-15 minutes later she said that “her ex-boyfriend had hit her”. She said that the complainant told her she was texting him on the day when she received the bruises and he asked to meet with her. She said that the complainant said that “they drove to Lidcombe, outside the cemetery” where “he called her a slut and a whore” and “when she tried to get out of the car he grabbed her and started punching her arms and legs”. She said that the complainant told her that she eventually got out of the car and ran to Lidcombe Station. She said that she was unable to see any other mark on her body as “she was covered up” with a “long black skirt on”.

[85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice.”

  1. As has been pointed out in a number of the authorities in considering the matter, regard must be had to the constitutional function of the jury as the tribunal of fact. That was emphasised in the following passages of the judgment of the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]   With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’ (footnotes omitted)”.

  1. In the present case, the jury had the opportunity of observing the complainant including in a lengthy and (without being critical) sometimes hostile cross-examination. Great weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the applicant on Count 8.

  2. Further, there are matters which support the complainant’s account. The choke marks, bruising and bite marks shown in the photographs to which I have referred at [220] above, were consistent with her evidence and she complained about the sexual assault relatively shortly after it was alleged to have taken place, including the complaint to Ms B shortly after the first interview “confirming that … she felt pressured to perform oral sex on her boyfriend” (see [156] above).

  3. Notwithstanding these matters, having reviewed the whole of the record, I am left in a reasonable doubt that the applicant committed the offence. It is a doubt which, in my opinion, should have been shared by the jury, notwithstanding the advantage that they had in seeing and hearing the complainant: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63. This is for the following reasons.

  4. Although Count 8 must be considered separately from the other counts in respect to which the jury failed to reach a verdict, it is necessary to consider her evidence in respect of these counts in assessing her credibility: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[188].

  5. The first matter of concern is her evidence on Count 1. Even if the lights were extinguished, there is a degree of improbability about the activities that she described taking place in a study room of a university which had windows, that students may have walked past the room and she did not know if the room was locked (see [41] above).

  6. This would not, of itself, cast doubt on her credibility. More significant is her version of what occurred. I have set out her evidence in chief at [38] above and cross-examination at [78] above. Her evidence that she consented to penile-vaginal sex “immediately after the blow job” because she wanted to forget the latter, is difficult to accept, as is her evidence that after the penile-vaginal sex finished, she said “it was fun, but I don’t like doing blow jobs” and then they went to KFC for dinner together.

  7. The next difficulty is the Facebook messages to which I have referred at [87] and [93]. Her question, “are you really a virgin?” is of course quite inconsistent with her having had penile-vaginal sex with the applicant. The content of the Facebook exchange, “Baby are you really a virgin I’m so excited I want to have children” made her statement that she wrote the message because the applicant was “delusional” thinking he was still virgin, quite improbable. Similarly her statement in the Facebook message to which I have referred at [93], in which the complainant stated that other boyfriends had abused her but the applicant was the “best boyfriend” she had had, is inconsistent with the alleged sexual abuse. Her statement that this was a lie also impacts on her credibility.

  8. Of greater significance is the absence of any complaint of sexual abuse in any of the Facebook messages which passed between the complainant and the applicant. Also of significance in that context are the matters to which I have referred at [94]-[96]. The complainant initially said that she had discussions with the applicant about seeing a psychologist or psychiatrist, although she subsequently said that it was her mother who said that she was going to take her to a psychiatrist when she and the applicant met with their respective parents. It should be noted that there is no reference to this in any of the evidence of the respective parents of the complainant or the applicant. Further as Queen’s Counsel for the applicant pointed out, it would be surprising if the applicant advised or supported the complainant seeking psychological help if in fact the sexual abuse had been the cause of her psychological distress.

  9. Further, whatever was said at the meeting between the respective parents in November, there did not seem to be any allegation of sexual abuse or non-consensual sex. In addition, in the Facebook messages which passed between the complainant and the applicant after the meeting, the applicant again denied that he had sex with the complainant (see [68] above).

  10. The next difficulty relates to the evidence of Ms N. On the complainant’s version of the conversation she had with Ms N, she told Ms N that she was wet as the applicant poured a jug of water over her and spat on her. If, in addition to this occurring, the applicant had beaten her with a tennis racket, there seems to be no particular reason why it was embarrassing to tell Ms N of that fact. Further, the complainant stated that there were no marks on her which was surprising if the applicant had beaten her five times with a tennis racket.

  11. In addition, contrary to the evidence of the complainant, Ms N stated that she did not observe the applicant was wet at all.

  12. There are also a number of matters directly relating to Count 8. First, although the photographs provide some support for what the complainant said occurred on the night in question, they do not provide direct support for the actual sexual assault alleged. Rather, they are consistent with the original complaint made to members of the complainant’s family and in the first police interview, namely, a physical assault. Even then, there are inconsistencies. According to JAE, the complainant told him that the applicant had threatened her saying that he had a gun and a shovel, whilst the complainant’s evidence was that it was a knife and a shovel. In addition, according to her Aunt B, the complainant told her that the applicant had choked her with both hands, whilst the complainant said that in this incident, it was only with one hand. These matters are not of particular significance of themselves but they must be taken into account along with the other matters to which I have referred in assessing the credibility of the complainant.

  13. The complainant did not directly allege that she had been sexually assaulted in her first interview with the police. The complainant stated in that interview that the applicant had threatened to kill her if she did not give him a blow job. Unfortunately, she did not appear to be asked by the police whether she complied with that threat by giving the applicant a blow job. The interview rather went on to deal with the assault that took place at the time. However, it must be noted that at the conclusion of her first interview, she was asked the following questions and gave the following answers:

“Q.   O.K. You may think of something that you have not remembered to tell    us later on.

A.   Ah hmm.

Q.   We don’t need to hear about every …

A.   Yeah.

Q.   … tiny little thing, but if there’s anything that you think’s very important that we need to know about, you should contact me and I can arrange to take a, a written statement that we explained is the other way of taking a statement …

A.   OK.

Q.   … at that time.

A.   Well, there …

Q.   Do you understand that?

A.   Yeah. There is something.

Q.   Yeah. Sure. Is there anything else you wish to tell me?

A.   Um, well, he spits at my face. I don’t know what, he thinks I’m disgusting now, he never used to, he was never like that …

Q.   Yeah.

A.   … until I started hanging out with this girl Marcelle. He keeps on blaming this girl Marcelle about everything. ‘Ever since you started hanging out with her, you became a loser, you this, and now I’m falling behind with life because of you,’ all that stuff. And I don’t know why he’s blaming me, I’ve done nothing towards him.

Q.   Yeah.

A.   I was always there for him every time. I feel like I’ve done a lot for Joseph, but he doesn’t see it. He doesn’t. He thinks he’s done a lot for me. He’s only done, what, one thing, and then the rest, he tries, he says that he tries his best to make people think I’m not weird or some, or say stuff about me. But I don’t know, I feel like he’s the one saying it. But he tells me he’s not, because he loves me.

Q.   All right. So the time is now 11.25.”

  1. Further, her Facebook message that evening, “Goodnight I love you” is on its face inconsistent with a sexual assault that day. In saying this, it must be remembered that does not, of itself, lead to the conclusion that the assault did not occur. There are many reasons why a person who has been assaulted in the manner alleged by the complainant may make a statement of that nature. Not the least being a desire to continue what had always been a turbulent relationship.

  2. There are two other matters which are of relevance in assessing the complainant’s credibility. First, the evidence of Mr M and Ms C which cast doubt on the complainant’s evidence of the contact between her and the applicant in 2012 and second, the detail of her conversation with Ms C which the latter said took place at the school reunion. Ms C did not appear to have any reason to depose to a conversation which did not take place with her.

  3. There is also evidence that the applicant was a person of good character, although the description of the applicant as “a gentleman” and “very respectful at work” is certainly not reflected in some of the Facebook messages he sent to the complainant.

  4. In considering the evidence, allowance must not only be made for the advantage of the jury but also the emotional state of the complainant at the relevant time which is apparent from the Facebook messages in evidence, some of which I have reproduced in this judgment. Thus, I have placed no regard to the fact that the relationship continued, notwithstanding the alleged sexual assaults. Although I have referred to it, I have placed little weight on the message, “Goodnight I love you” on the night of the alleged incident the subject of Counts 7 and 8. Notwithstanding, the matters to which I have referred have left me in reasonable doubt that the offence was committed.

  5. In these circumstances, in my opinion, Ground 2 has been made out.

An irrelevant matter

  1. In the course of a Crown detention application following the conviction, the trial judge made the following remarks:

“I do have to say, I’ve put one matter perhaps on the table so far as the jury’s verdict is concerned, and we are to respect it, and I do. It does, however, seem to me to be a matter of some concern about consistency when the jury were capable of deciding count 8, a sexual intercourse charge in its aggravated form, which relied upon the complainant’s evidence substantially, although I note that that was a case where there was self-evident injury and they obviously took a view about that, but nevertheless were unable to decide on her word the other seven counts. Again, it is on one view – and this is a personal view apropos perhaps of nothing – but it strikes me as being at least a potential inconsistency.

How that impacts on later proceedings, I don’t know, but I would have thought that if [the complainant] was a credible and honest witness to 11 of them in relation to count 8, there is no reason to suppose she was other than that on counts 1 through to 7, but I simply make that statement and leave it to others to determine.”

  1. Subsequently in declining to set the matter down for sentence, the trial judge made the following comments:

“I think what I’m inclined to do is to set a date for mention, I think. That seems to me to be perhaps creating work which may not be ultimately required for those and I see no practical difference, with due respect to [the complainant], who is the victim in relation to count 8, and all of them – I think it was a case which had, in my view at least, from the prosecution point of view, some problems, and I adhere to what I said after the verdict. It’s very hard to discern how there could have been a guilty verdict on one and not the others.

It seems to me the same author of the complaint, which was [the complainant], was the person who spoke to all counts, and speaking for myself, I didn’t see much of a difference between the quality of the evidence or its nature, one against the other …”

  1. The applicant submitted that the comments by the trial judge who, like the jury had the advantage of seeing the complainant, could be taken into account in determining whether the verdict is unreasonable.

  2. I do not agree. It was a matter for the jury to determine the guilt or innocence of the applicant, not the trial judge. It is the function of this Court to determine whether the verdict is unreasonable in accordance with the authorities to which I have referred. With the greatest respect to those who take a contrary view (see McCann v R [2014] NSWCCA 79; Drysdale v R [2015] NSWCCA 135), I do not think that it is appropriate to take the view of the trial judge expressed following the conclusion of the trial into account.

  3. The view which I have expressed seems to be consistent with what was said by Crennan J in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [112]-[115]. Although her Honour was in dissent as to the result, nothing said by her was inconsistent with the reasoning of the majority who did not deal with the issue.

  4. As I have reached the conclusion that in any event the conviction should be set aside, it follows that it is not necessary for me to deal with this matter further or to consider whether I am bound by what was said in McCann v R and Drysdale v R.

Conclusion

  1. In the result, I make the following orders:

  1. Grant the applicant leave to appeal.

  2. Quash the conviction of the applicant on Count 8 of the indictment dated 9 July 2018 and in lieu thereof enter a verdict of acquittal.

  1. BELL P: I have had the benefit of reading in draft the reasons of the Chief Justice and the concurring reasons of Hamill J. I agree with the orders proposed by the Chief Justice and, subject to one point of elaboration, with his Honour’s reasons.

  2. The elaboration relates to the complainant’s failure to raise the sexual assault which formed the basis of Count 8 in her first interview with the police on Saturday 9 April 2016, being two days after the alleged assault.

  3. The Chief Justice has pointed out at [7]−[14] of his reasons that the complainant was asked on multiple occasions in her first interview what had happened. At [14], his Honour records that, after giving her account, the complainant was asked whether there was anything else she could tell the interviewer about what happened. The Chief Justice sets out verbatim the complainant’s response to that question which made no reference to the alleged sexual assault. The complainant then volunteered that she felt confused “because I’ve been with him for a long time” and “I can’t get out of it”. After that answer, there then followed this exchange between the complainant and Constable Battin:

“Q.   OK. You may think of something that you have not remembered to tell    us later on.

A.   Ah hmm.

Q.   We don’t need to hear about every - - -

A.   Yeah.

Q.   - - - tiny little thing, but if there’s anything that you think’s very important that we need to know about, you should contact me and I can arrange to take a, a written statement that we explained is the other way of taking a statement - - -

A.   OK.

Q.   - - - at that time.

A.   Well, there - - -

Q.   Do you understand that?

A.   Yeah. There is something.

Q.   Yeah. Sure. Is there anything else you wish to tell me?

A.   Um, well, his spits at my face. I don’t know what, he thinks I’m disgusting now, he never used to, he was never like that - - -

Q.   Yeah.

A.   - - - until I started hanging out with this girl Marcelle. He keeps on blaming this girl Marcelle about everything. ‘Ever since you started hanging out with her, you became a loser, you this, and now I’m falling behind with life because of you,’ all that stuff. And I don’t know why he’s blaming me, I’ve done nothing towards him.

Q.   Yeah.

A.   I was always there for him every time. I feel like I’ve done a lot for Joseph, but he doesn’t see it. He doesn’t. He thinks he’s done a lot for me. He’s only done, what, one thing, and then the rest, he tries, he says that he tries his best to make people think I’m not weird or some, or say stuff about me. But I don’t know, I feel like he’s the one saying it. But he tells me he’s not, because he loves me.

Q.   All right. So the time is now 11.25.” (emphasis added).

  1. I have emphasised those aspects of this exchange that I consider particularly significant. The police officer perfectly properly signified to the complainant that if she thought that there was anything else particularly important, she should contact the police. The complainant responded immediately, under no pressure, and said that “Well … [t]here is something.” That was the spitting.

  2. It is, to my mind, striking that the complainant did not take the opportunity to volunteer the sexual assault on this occasion, particularly given the graphic and detailed nature of her account of it in the second police interview a mere two days later. It was not, if that account be accepted, something that was likely to slip her mind.

  3. No evidence was elicited either in chief or in re-examination from the complainant as to why she made no reference to the alleged sexual assault in the first interview, particularly in circumstances where she had attributed to the applicant the statement “If you don’t have sex with me, or if you don’t give me a blow job, um, I will kill you.” It was not as though she had avoided this subject in her first interview, and yet she had said nothing about acceding to the applicant’s alleged threat notwithstanding being asked in what was, from the tone of the officer’s questions, a sympathetic environment, whether there was anything else that she thought that was “very important that [the police] need to know about”.

  1. It is also significant to my mind that the complainant said nothing about the alleged sexual assault to her friend and work mate Ms B on the evening of 8 April 2016 when they were working together. Ms B’s evidence in this regard was that:

“Q.   Half way through your shift you saw [the complainant] in the fitting rooms?

A.   Yes, that’s correct.

Q.   You walked over to say hello to her?

A.   Yes.

Q.   Did you make any observations of her?

A.   Yes, I noticed a bruise on her right arm on the inside.

Q.   Did you say anything?

A.   I asked her, ‘What happened.’

Q.   What did she say?

A.   I don’t remember word for word, but it was something along the lines that her boyfriend had grabbed her arm.

Q.   Did you ask her – did you say anything to her when she said that to you?

A.   I said, she should probably report it, to the police.

Q.   Do you recall if she gave you any further details that evening?

A.   That he had taken her from Strathfield, he found her at Strathfield, and then took her into the car and drove her to a grave yard.

Q.   Did she tell you what had happened when they got to the grave yard?

A.   She said that’s when he grabbed her arm and then punched her in the leg, she did show me her leg but there were no visible bruises on that time. That’s all I can remember.

Q.   You said that you said to her that – did you say anything to her at that point in time?

A.   Yeah, I said, ‘It’d be a good idea to go to the police,’ and that I’d go with her if she’d want.

Q.   What did she say?

A.   She was a bit hesitant at first, because she didn’t want her mum to find out, but then I said to her, ‘It’d probably be a good idea,’ and that, I would pick her up in the morning and then take her, just her and I.” (Emphasis added)

  1. The significance of the failure to report the sexual assault in the course of the first police interview is tempered to some extent by the fact that, according to the complainant’s evidence which in this regard was corroborated by the evidence of Ms B, soon after the first interview when the complainant, Ms B and another friend, Ms D were speaking in a park (they all having attended the first interview), in apparent answer to a question from Ms B, the complainant said “she felt pressured to perform oral sex on her boyfriend”. It was not entirely clear from Ms B’s account that this was a specific reference to what had occurred on 7 April 2016 as opposed to a more general statement but the context of the conversation probably supports the view that is related to the incident on 7 April 2016. Ms B and the complainant both said that, as they were having this conversation, the complainant’s phone rang and they were asked to come back to the police station. Ms B said:

“When we went back, a female detective escorted us back into the same interview room, and then asked us to wait there, but I had to leave to go to work before they started anything.”

  1. According to the complainant’s evidence, when she returned to the police station, she told a Detective Allen “about if I didn’t give him a blow job he would kill me, and that he forced me to give it to him”. There does not appear to have been any formal police record of this having been said in evidence at trial, and there was certainly no record of it in the materials put before the Court of Criminal Appeal. Nor is there any reference to it in the transcript of the second interview which Detective Allen conducted on 11 April 2016. That record of interview begins:

“[S]o on Saturday, the 9th of April … 2014 [sic], you attended Quakers Hills Police Station … and spoke to Constable Batton on [sic] regards [sic] to a domestic incident”.

The transcript of the second interview makes no reference to any subsequent interview or report of the sexual assault to Detective Allen on 9 April 2016. The Detective was not called to give evidence, and Ms B was not able to give evidence as to what had been said or reported on the second visit to the police station on 9 April 2016 as she left the police station after the complainant had been taken into the interview room.

  1. It is curious and unfortunate that there is no record or independent corroboration of the report of the sexual assault to police on 9 April 2016 subsequent to the first police interview earlier that day. The failure to raise the matter in the first interview, however, in the context of the tone of that interview, the other information that was volunteered, all taken in conjunction with the various other issues going to the complainant’s credibility that have been referred to in the Chief Justice’s judgment at [278]−[290] and my own review of the evidence leaves me with a similar doubt to that expressed by the Chief Justice at [276] of his judgment.

  2. To the matters referred to in [285] of his Honour’s judgment, I would add the following inconsistencies in the evidence relating to Count 8:

  1. in her second police interview, the complainant said that she had told Ms B and Ms D on 8 April 2016 about what had happened; but, as I have noted in [305] above, the only matter Ms B recalled being told by the complainant on 8 April was the alleged physical “grabbing” of the complainant by the appellant but not sexual assault;

  2. there was an important inconsistency in the second interview as to the circumstances surrounding the reason why the complainant “got angry” on 7 April 2016. The complainant initially said:

“A.   He got angry because he saw text messages from a guy I’m going on a date with on Friday.

Q.   Uh-huh.

A.   Um, and then that’s when all the, um, abuse started happening, the choke, ah, choking and, um, the hitting.

Q.   OK.

A.   Yeah.” (Emphasis added)

Later in that interview, the complainant changed her evidence and said that the appellant saw the text messages the day before the alleged assault at Strathfield Station. I do not consider this inconsistency to be trivial or innocuous as, according to the complainant’s initial account extracted above, it was the viewing of the text messages on the day of the incident in the car that triggered the applicant’s anger and violence. The later change in evidence, bearing in mind that the second interview occurred only four days after the incident in question, seriously undermines confidence in the credibility of the complainant.

  1. In relation to the final ground of appeal concerning inconsistency, the Chief Justice and Hamill J differ at least in terms of degree as to the extent to which the failure of a jury to reach agreement on a particular count or counts might underpin a ground of appeal based on principles of inconsistency.

  2. In my opinion, the risks and illegitimacy of speculation or second guessing, even subconsciously, the reasons for such an outcome of jury deliberations seem to me to be very great. At the very least, great caution is called for in entertaining such a ground of appeal in the circumstances postulated.

  3. HAMILL J: I have had the considerable advantage of reading the judgment of Bathurst CJ in draft. I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

  4. I do not share his Honour’s reservations as to the extent to which the failure of a jury to reach agreement on a particular count or counts might form the basis of a ground of appeal asserting that the outcomes are inconsistent (legally or factually), or that a guilty verdict is unreasonable on the basis that the same jury was unable to reach a verdict in respect of other counts on the same indictment.

  5. Plainly, a jury’s failure to reach a verdict on particular counts cannot be said to be an inconsistent “verdict”. However, as the English Court of Appeal said when considering this question, “linguistics should not be allowed to triumph over justice” [1] . Whether the ground be one of “legal or technical inconsistency”, factual inconsistency, or where the assertion is that a guilty verdict is unreasonable because there is no logical or reasonable explanation for the disparate outcomes, I cannot see any reason in principle that a failure to reach a verdict cannot form the basis for grounds of appeal such as those now raised.

    1. R v Formhals [2014] 1 WLR 2219 at [27].

  6. This is not to say that an appellate court can engage in speculation as to the reason for the disagreement. But, to cite the most common example, if the only issue in dispute is the credibility of the complainant, and at least some members of the jury entertained a reasonable doubt as to that credibility on some counts, while accepting it beyond reasonable doubt on others, the same considerations as those discussed in cases such as Jones v R [2] , MFA v R [3] and Markuleski v R [4] may apply.

    2. (1997) 191 CLR 439; [1997] HCA 56.

    3. (2002) 213 CLR 606; [2002] HCA 53.

    4. (2001) 52 NSWLR 82; [2001] NSWCCA 290.

  7. As the Chief Justice’s judgment demonstrates, there is some tension in the authorities. As I said in PA v R,[5] without attempting finally to resolve this conflict:

“I am inclined to the view expressed by the Victorian Court of Appeal (Maxwell P, Redlich and Whelan JJA) in Tukuafu v The Queen [2014] VSCA 345 that:

‘the appropriate inference to be drawn from the jury’s failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case.’”

5. [2015] NSWCCA 18.

  1. In PA, Hoeben CJ at CL posited a way of reconciling the authorities at [40]. I maintain my agreement with that approach and my view that “a jury’s failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported.” [6]

    6. PA v R [2015] NSWCCA 18 at [75].

  2. This is not a case of “legal or technical inconsistency” of the kind referred to in Mackenzie v The Queen. [7] Rather, to adopt again the language used in Mackenzie, it is one of “factual inconsistency”. As I said in PA, [8] (by reference to the High Court’s decision in MFA) [9] “ultimately, the test is unreasonableness rather than inconsistency” and the Court must “examine any differentiation in the verdicts to see if it can be justified” [10] .

    7. (1996) 190 CLR 348 at 366.

    8. PA v R [2015] NSWCCA 18 at [71].

    9. MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, especially at [36] (per Gleeson CJ Hayne and Callinan JJ).

    10. MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [89].

  3. Accordingly, and consistent with the approach taken by Bathurst CJ, I have considered the applicant’s first ground on the basis that the failure of the jury to agree on verdicts for counts 1 to 7 can inform this Court’s assessment of whether the guilty verdict on count 8 is factually inconsistent with the outcome (or lack of outcome) in counts 1 to 7 (and therefore unreasonable).

  4. As the Chief Justice’s analysis shows, there were manifest factual and evidentiary differences between the prosecution case on counts 1 to 6 and its case in respect of counts 7 and 8. Perhaps most significantly, there was a relatively prompt complaint in respect of the allegations comprising counts 7 and 8. There is no logical inconsistency between the verdict on count 8 and the failure to reach verdicts on counts 1 through to 6. The jury’s differentiation between those counts, and the disparate outcomes, were justified by the evidence in the case. It was neither illogical nor unreasonable in the relevant sense.

  5. Count 7 required proof (beyond reasonable doubt) of a particular and quite specific mental state. Count 8 did not. Further, the complainant’s evidence in respect of the choking contained some inconsistencies. For those reasons, there was no relevant inconsistency between the guilty verdict in respect of count 8 and the jury’s inability to reach a verdict on count 7.

  6. For those reasons, and for those provided by the Chief Justice, I would reject ground 1.

  7. As to ground 2, I have undertaken a review of the whole of the evidence, noting that neither party submitted that the Court should view or listen to the recordings of parts of the evidence or the interviews.

  8. I am left with a substantial doubt as to the appellant’s guilt. The jury’s advantage in seeing the witnesses (and in particular the complainant) give evidence does not allay, explain or resolve that doubt. It is a doubt that the jury ought to have entertained. In reaching that conclusion, I have considered some of the more extraordinary aspects of the evidence in respect of the other counts and more generally, such as the version concerning count 1 and the ongoing Facebook message exchange. In making an assessment of the evidence elicited in proof of count 8, I have taken into account the deficiencies in the evidence in respect of the other allegations and counts and the prosecution case more generally: see R v Markuleski [11] .

    11. (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[190].

  9. Accordingly, I agree with Bathurst CJ that ground 2 must be upheld, the conviction on count 8 quashed, and a verdict of not guilty should be entered. In addition to the specific observations in the preceding paragraph, I agree with, and adopt, the reasons articulated by the Chief Justice.

  10. In the circumstances of the present case, I agree that the understandable concerns expressed by the trial Judge as to the verdict on count 8 should play no role in this Court’s consideration of the question of whether that verdict was unreasonable or unable to be supported by the evidence adduced at the trial.

  11. I agree with the orders proposed by the Chief Justice.

**********

Endnotes

Amendments

02 September 2019 - Amended paragraph numbering at end of judgment

Decision last updated: 02 September 2019

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Cases Citing This Decision

19

PM v The King [2025] NSWCCA 139
PM v The King [2025] NSWCCA 139
Omigie v The King [2024] NSWCCA 205
Cases Cited

28

Statutory Material Cited

2

Mackenzie v The Queen [1996] HCA 35
MFA v The Queen [2002] HCA 53
Hocking v Bell [1945] HCA 16