Dadley v R

[2021] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Dadley v R [2021] NSWCCA 267

Hearing dates:

15 September 2021

Date of orders:

09 November 2021

Decision date:

09 November 2021

Before:

Bell P at [1];
Walton J at [132];
Bellew J at [133]

Decision:

1.   Leave to appeal is granted.

2.   Appeal allowed.

3.   The applicant’s conviction is quashed and the sentence set aside.

Catchwords:

CRIME – Appeals – appeal against conviction – where applicant charged with two counts of sexual intercourse without consent and one count of indecent assault – where jury found the applicant not guilty of one count of sexual assault, but guilty of another count of sexual assault and indecent assault – where the events founding the three complaints were intertwined both temporally and contextually

CRIME – Appeals – appeal against conviction – inconsistent verdicts – where the guilty verdicts on two of the counts were inconsistent with the applicant’s acquittal on one count of sexual intercourse without consent – where the acquittal on the one count of sexual intercourse without consent was explicable only by doubts the jury must have held as to the complainant’s credibility – where the events founding the three complaints were intertwined both temporally and contextually

CRIME – Appeals – appeal against conviction – unreasonable verdicts – where verdicts were unreasonable and could not be supported having regard to the whole of the evidence – where the complainant’s assessed state of intoxication and the implausibility in aspects of her account should have caused a doubt in the mind of the jury as to whether or not the applicant was guilty – where certain DNA evidence appeared to have been critical to the jury’s returning of a guilty verdict against the applicant – where such DNA evidence was more consistent with a secondary transfer as a result of the complainant having picked up the applicant’s DNA in relevantly innocuous circumstances

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 6

Criminal Procedure Act 1986 (NSW) ss 130A(3), 306I

Evidence Act 1995 (NSW) s 137

Cases Cited:

Bussey v R [2020] NSWCCA 280

Director of Public Prosecutions v Paulino (2017) 54 VR 109; [2017] VSCA 38

DPP v Wise [2016] VSCA 173

Gage v R [2021] NSWCCA 222

Ganiji v R [2019] NSWCCA 208

Jafary v R [2018] NSWCCA 243

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59

Kim v R [2020] NSWCCA 288

Long (a pseudonym) v R [2021] NSWCCA 212

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

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Martin v R [2020] NSWCCA 192

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

ML v R [2015] NSWCCA 27

Nguyen v R [2021] NSWCCA 85

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

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v Stone (Court of Criminal Appeal (UK), 13 December 1954, unrep)

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

Rogerson v R; McNamara v R [2021] NSWCCA 160

Roos v R [2019] NSWCCA 67

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

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Principal judgment

Parties:

Andrew Thomas Dadley (Applicant)
The Crown (Respondent)

Representation:

Counsel:

M Johnston SC with P Butterfield (Applicant)
B Hatfield (Respondent)

Solicitors:

Kapsis Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/375599

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 October 2020

Before:

Sweeney DCJ

File Number(s):

2016/375599

HEADNOTE

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

Mr Andrew Thomas Dadley (the Applicant) was charged on indictment and pleaded not guilty to two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), and one count of committing an indecent act, contrary to s 61L of the Crimes Act.

A first trial before Bennett SC DCJ which commenced in February 2020 in the District Court of New South Wales (the first trial) resulted in the discharge of the jury, after it was unable to reach a unanimous or majority verdict. After a second trial before Sweeney DCJ which commenced in July 2020 (the second trial), the jury found the Applicant not guilty of the first count of sexual intercourse without consent, but guilty of the remaining two counts. The Applicant was sentenced to an aggregate term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years.

The alleged counts were said to have occurred at the Complainant’s apartment in the early hours of 9 December 2016, after a work Christmas party which both the Applicant and the Complainant, who were work colleagues, attended. During the work Christmas party, the Complainant had informed both the Applicant and another colleague, Mr Adam Richards (Mr Richards), that they were welcome to stay over at her apartment after the party. The Complainant, the Applicant and Mr Richards caught an Uber together back to the Complainant’s apartment shortly after midnight. After chatting and winding down for around 45 minutes, each went to their respective beds in line with the agreed sleeping arrangements, with the Applicant sleeping in Bedroom 1, the Complainant in Bedroom 2, and Mr Richards on the sofa in the lounge room.

In relation to Count 1, being the first charge of sexual intercourse without consent, the Complainant gave evidence that she “passed out straightaway” in Bedroom 2, and awoke to the Applicant having penile-vaginal intercourse with her. The Applicant denied that sexual intercourse had occurred, or that he even went into the bedroom in which the Complainant had gone to sleep. The Applicant was found not guilty in respect of Count 1.

In relation to Count 2, being the second charge of sexual intercourse without consent, the allegation was that after the act of intercourse alleged in Count 1, the Applicant moved the Complainant from the bed in Bedroom 2, to the bed in which he had been sleeping in Bedroom 1, and again had penile-vaginal intercourse with the Complainant without her consent. The Complainant gave evidence that she did not remember getting down off the bed in the original bedroom, or the transition between the two bedrooms.

The Applicant again denied that sexual intercourse had occurred. His evidence was that he went to sleep in Bedroom 1, dressed in his jeans, shirt and socks, and that he woke in that bedroom to the Complainant shouting at him and hitting him, and that he said words to the effect of “What’s wrong? Why are you hitting me?”

In relation to Count 3, being the charge of indecent assault, the act alleged was that after the act of sexual intercourse the subject of Count 2, the Applicant put saliva on his fingers by licking them and then applied that saliva with his fingers to the outside of the Complainant’s vagina. The Applicant also denied that the act alleged occurred.

The Complainant gave evidence that when she finally realised what was happening in Bedroom 1, she reacted by screaming at the Complainant and “frog marching” him out of her apartment, with the Applicant not wearing any pants or underpants when he was thrown out of the apartment. According to the unchallenged evidence of Mr Richards, who observed the Applicant being kicked out of the apartment from his position on the sofa in the lounge room, the Applicant was wearing pants at this time.

The Complainant had a Sexual Assault Investigation Kit (SAIK) performed at the Royal Prince Alfred Hospital, and was examined approximately 17-18 hours after the alleged assault. Genital swabs were taken from the Complainant. Whilst the Applicant objected to the admission of certain DNA evidence and made an application for exclusion on the basis of either relevance or under s 137 of the Evidence Act 1995 (NSW), submitting that there was a “significant risk of secondary transference” and that the danger of misuse of the evidence was high, Bennett SC DCJ in the first trial rejected the application and held that the evidence had significant probative value which outweighed its prejudicial effect. This pre-trial ruling carried through to the second trial, in accordance with s 130A(3) of the Criminal Procedure Act 1986 (NSW).

The principal issues on appeal were:

1. whether the verdict of not guilty in relation to Count 1 was inconsistent with the verdicts of guilty in relation to Counts 2 and 3; and

2. whether the verdicts of guilty in relation to Counts 2 and 3 were unreasonable and could not be supported having regard to the evidence.

The Court held (Bell P, Walton and Bellew JJ agreeing):

1. The verdicts of guilty in relation to Counts 2 and 3 were inconsistent with the Applicant’s acquittal on Count 1. This acquittal was only explicable by doubts the jury must have held as to the Complainant’s credibility, in circumstances where there were no other eyewitnesses, and where the events founding the three complaints were so intertwined, both temporally and contextually, that the jury’s doubt as to the Complainant’s evidence in relation to Count 1 must have carried through to her evidence in relation to Counts 2 and 3. It was difficult to identify a possible or plausible basis for differentiating the verdict of not guilty in respect of Count 1, and the verdicts of guilty in respect of Counts 2 and 3: [89]-[102] (Bell P); [132] (Walton J); [133] (Bellew J).

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered.

2. On a review of the whole of the evidence, the verdicts of guilty with respect to Counts 2 and 3 were unreasonable. In addition to the inconsistency in relation to the finding of not guilty in respect of Count 1, to the extent that the jury’s verdicts in respect of Counts 2 and 3 were influenced by a trace of DNA detected in the Complainant’s vagina following the SAIK test, expert evidence revealed an inability of such DNA to survive in the vagina for more than 12 hours, whereas the SAIK test was performed some 17-18 hours after the alleged assaults. The DNA evidence was more consistent with a secondary transfer as a result of the Complainant having picked up the Applicant’s DNA in relevantly innocuous circumstances. This, coupled with the important tension in the evidence between the Complainant’s evidence and Mr Richards’ unchallenged evidence as to the Applicant’s state of dress when he was being evicted from her apartment, the Complainant’s state of intoxication and the Applicant’s own words and tone at the time of the alleged assaults, rendered the jury’s verdicts in relation to Counts 2 and 3 unreasonable: [108]-[127] (Bell P); [132] (Walton J); [133] (Bellew J).

3. The Court quashed the Applicant’s conviction and set aside his sentence.

Judgment

1. BELL P: Mr Andrew Thomas Dadley (the Applicant) was charged on indictment with the following offences:

“ANDREW THOMAS DADLEY

1   on the 9th day of December 2016, at Hillsdale in the State of New South Wales, did have sexual intercourse with [the Complainant] without her consent, knowing that [the Complainant] did not consent to the sexual intercourse.

S 61I Crimes Act 1900 Law part code 271

AND the Director of Public Prosecutions FURTHER CHARGES that

ANDREW THOMAS DADLEY

2   on the 9th day of December 2016, at Hillsdale in the State of New South Wales, did have sexual intercourse with [the Complainant] without her consent, knowing that [the Complainant] did not consent to the sexual intercourse.

S 61I Crimes Act 1900 Law part code 271

AND the Director of Public Prosecutions FURTHER CHARGES that

ANDREW THOMAS DADLEY

3   on the 9th day of December 2016, at Hillsdale in the State of New South Wales, did assault [the Complainant] and at the time of the assault committed an act of indecency on [the Complainant].

S 61L Crimes Act 1900 Law part code 285”.

2. The Applicant pleaded not guilty to each of these charges.

3. A first trial before Bennett SC DCJ which commenced on 10 February 2020 in the District Court of New South Wales (the first trial) resulted in the discharge of the jury on 24 February 2020 after the jury was unable to reach a unanimous or majority verdict.

4. A second trial commenced before Sweeney DCJ (the trial judge) and a jury of 12 in the District Court on 21 July 2020. The Complainant’s evidence from the first trial was admitted in the second trial in accordance with s 306I of the Criminal Procedure Act 1986 (NSW). The remaining witnesses from the first trial gave evidence again in the second trial, including the Applicant. The parties did not re-agitate the previous pre-trial rulings made during the first trial. This was in accordance with s 130A(3) of the Criminal Procedure Act, which relevantly states that:

“If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.”

5. In the second trial, the jury found the Applicant not guilty of Count 1, and guilty of Counts 2 and 3.

6. On 29 October 2020, the Applicant was sentenced to an aggregate term of imprisonment of 3 years and 3 months, to commence on 29 October 2020 and to expire on 28 January 2024, with a non-parole period of 2 years, to expire on 28 October 2022. The trial judge nominated indicative sentences of 3 years’ imprisonment in respect of Count 2, and 12 months’ imprisonment in respect of Count 3. The Applicant was granted bail following both the verdict and sentence and remains on bail with certain conditions imposed.

7. The Applicant seeks to challenge his conviction before this Court. He appeals on three grounds:

1. the trial judge erred in admitting the y-filer evidence (the DNA ground);

2. the verdict of not guilty in relation to Count 1 is inconsistent with the verdicts of guilty in relation to Counts 2 and 3, and the verdicts of guilty are unsustainable (the inconsistent verdicts ground); and

3. the verdicts of guilty in relation to Counts 2 and 3 were unreasonable and cannot be supported having regard to the evidence (the unreasonable verdicts ground).

   8. The DNA ground relates to the admission during the first trial of certain DNA evidence over the Applicant’s objection, it being argued that the probative value of the evidence outweighed its prejudicial effect. That evidence and Bennett SC DCJ’s ruling on it are considered at [66]-[73] and [128]-[130] below.

   9. Fully to understand the significance of that evidence and the other two grounds of appeal, it is necessary to set out in some detail the competing accounts of the Complainant and the Applicant about what transpired between them in the early hours of 9 December 2016 after a work Christmas party. The Applicant and the Complainant were work colleagues, both employed at Fire and Rescue NSW. The Complainant described them as having “a normal, professional relationship”. [1]

   10. As will be seen, in the critical respects, the two accounts are radically at odds, with the Applicant denying any sexual interaction with the Complainant at all.

   11. The account of events was also partially informed by the evidence of a fellow worker, Mr Adam Richards (Mr Richards), who was a Recruit Instructor with the NSW Fire and Rescue, [2] and who arrived at the Christmas party between 6-6:30pm, being one of the last to have arrived, with the party commencing a couple of hours before that. [3] As explained below, Mr Richards returned to the Complainant’s apartment after the Christmas party with the Applicant on the night on which the offences were said to have occurred.

   12. Mr Richards made a note of the relevant events at approximately 8 AM, some 5 or so hours of their alleged occurrence. He emailed this note to himself at 8.25am. He was cross examined by reference to this note but it was not tendered as an Exhibit.

Background

1. Tcpt, 12 February 2020, 104:40-42.

2. Tcpt, 22 July 2020, 23:26-27.

3. Tcpt, 22 July 2020, 24:19-28.

13. On 8 December 2016, the Complainant, the Applicant and Mr Richards all attended, together with other work colleagues, a Christmas party at the Graphic Arts Club at Mascot. The Complainant arrived at the Christmas party at about 5pm. The party wound up at about midnight.

14. At one stage during the evening, the Complainant informed Mr Richards that he was welcome to stay at her apartment, as both of her children were staying with their father that night at a separate residence. This meant that Mr Richards could drink alcohol and not have to drive to his parents’ house in Ermington after the Christmas party. [4] The Complainant’s apartment was approximately 10 minutes by car from the Graphic Arts Club. This account was supported by the evidence of Mr Richards who indicated that at around 10pm, at which point he had had around 4-5 Canadian Club drinks, the Complainant suggested that he could stay at her place. He said he “didn’t have a problem” with this, so he then had a couple of beers. [5]

    4. Tcpt, 12 February 2020, 106:30-37.

    5. Tcpt, 22 July 2020, 25:16-30.

15. At some later point during the night, the Complainant also invited the Applicant to stay over at her apartment. On the Applicant’s evidence, this was after the party had finished when the trains had stopped running. [6] He had originally planned to get public transport home to the far northern suburbs of Sydney, and it was at this stage when the Complainant extended an invitation to stay over at her place which was not far away.

    6. Tcpt, 27 July 2020, 187:14-41.

16. The Complainant, the Applicant and Mr Richards caught an Uber together back to the Complainant’s apartment shortly after midnight. [7] The Complainant gave evidence that she poured three gin and tonic drinks when they arrived, [8] and that she and the Applicant drank their drinks, although Mr Richards did not. [9]

    7. Tcpt, 22 July 2020, 25:36-46; 26:30-31, 42-48.

    8. Tcpt, 12 February 2020, 109:37-38.

    9. Tcpt, 12 February 2020, 110:7-11.

17. On the return to the Complainant’s apartment, on her evidence, there was a discussion in relation to sleeping arrangements, with Mr Richards volunteering to sleep on the sofa, and the Complainant taking her son’s bedroom and putting the Applicant in the main bedroom, as her “son’s sheets were pretty dirty so I didn’t want anyone else to sleep in there”. [10] Mr Richards’ evidence was that he did not believe that there was any specific discussion about sleeping arrangements, and that he was sitting on the lounge which he inevitably fell asleep on, and so any conversation about arrangements would have taken place between the Complainant and the Applicant. [11]

    10. Tcpt, 12 February 2020, 109:40-47.

    11. Tcpt, 22 July 2020, 27:17-32.

18. Mr Richards indicated that they “all just talked generally” for a while, and that this went for probably 45 minutes. [12] After “chatting and winding down”, everyone went to their respective bedrooms in line with the sleeping arrangements already noted. [13] That was at some time prior to 1.00am.

    12. Tcpt, 22 July 2020, 27:10-15.

    13. Tcpt, 12 February 2020, 110:13-29.

19. It is convenient at this point to refer to the layout of the Complainant’s apartment. A floorplan of the apartment which was in evidence at trial is seen below:

20. As can be seen from the floorplan, the door of the apartment opened directly to the living area, beyond which was a small dining area and the kitchen, which all effectively formed part of one open space. There was a sofa in that living area and a TV. This was the sofa on which Mr Richards slept. There were also two bedrooms, a bathroom and a small laundry. The smaller of these bedrooms, shown on the diagram as “Bed 2”, had a single bed in it (Bedroom 2). For reasons which will assume significance, this was a raised bed which had sets of drawers underneath it, no doubt to maximise space in what was a small room. The bed could only be reached by climbing up three essentially vertical steps akin to a ladder which formed part of the bed’s structure. The bed also had a rail on the side which did not abut the wall to prevent anyone in the bed falling from it. This was no doubt because of the bed’s greater than usual height from the ground. One could not, thus, roll off the bed, but would need to descend down the ladder.

20. The Complainant’s evidence was that this was the room in which her 11-year-old son ordinarily slept. It was also the room to which she retired when she went to bed in the early hours of 9 December 2016.

21. The other bedroom, shown on the diagram as “Bed 1” (Bedroom 1), contained two beds, one single bed and the other described as a loft bed, similar to that in the other bedroom which I have already described. This was the bedroom in which it was common ground that the Applicant was assigned to sleep and to which he retired when all three of the party went to sleep. The Complainant gave evidence that she changed the sheets on the single bed in Bedroom 1 prior to the Applicant going to sleep. [14]

    14. Tcpt, 12 February 2020, 109:33-38.

22. The significance of the floorplan is that the first alleged sexual assault was said to have occurred in Bedroom 2 and the second alleged sexual assault in Bedroom 1. On the Complainant’s evidence, this sequence involved the Applicant coming into Bedroom 2, having penile-vaginal intercourse with her on the raised bed in that bedroom, and then moving the Complainant from that raised bed and carrying her into Bedroom 1 where further penile-vaginal intercourse was said to have taken place. Although the Complainant gave detailed evidence about what she claimed had happened to her in Bedroom 1 (an account which the jury did not accept to the requisite standard of proof), as shall be seen, her evidence as to how she came to move or be moved from Bedroom 2 to Bedroom 1 was very unclear.

23. Returning to the chronological narrative of events, under cross-examination, the Complainant said that, at the time of going to bed, she had consumed a reasonable amount of alcohol but was not “blithering drunk”. [15] She estimated that, during the Christmas party, she had consumed approximately ten to a dozen schooners of beer and two spirits, being a Canadian Club and dry, and a gin and tonic. [16] This was in addition to the gin and tonic which she consumed when she returned to her apartment. She accepted under cross-examination that she had told Dr Bronwyn Gock (Dr Gock) of the Royal Prince Alfred (RPA) Hospital on the evening of 9 December 2016, i.e. the evening after the alleged sexual assaults which were said to have occurred in the early hours of 9 December 2016, that she had drunk “about a dozen schooners”. [17] When questioned in relation to her level of sobriety or intoxication, the Complainant indicated that she “thought [she] was doing pretty well”, and that she had her “wits about [her] as such”, and that she was not “falling over or anything like that”. [18] The scientific evidence led at trial indicated that the Complainant’s blood alcohol concentration at 3.00am (approximately the time when the offences were alleged to have occurred) was estimated to be .26%, that is to say, more than 5 times the legal limit for driving a motor vehicle. [19]

    15. Tcpt, 13 February 2020, 157:1-2.

    16. Tcpt, 13 February 2020, 105:47-50.

    17. Tcpt, 13 February 2020, 150:35-37.

    18. Tcpt, 12 February 2020, 106:22-24.

    19. The expert evidence was that any person who is at that concentration will display signs of impairment: Tcpt, 24 July 2020, 174:48-175:10.

24. The Applicant’s evidence was that, during the course of the Christmas party, he had consumed approximately six schooners of beer and three glasses of red wine. [20] As already noted, he also drank a gin and tonic with the Complainant at her apartment on their return after the Christmas party.

    20. Tcpt, 27 July 2020, 186:45-46.

25. The Applicant sent a text message to his wife at 1.50 AM, saying “Trains not running. Can’t get Uber. Going to crash at [the Complainant’s].” [21] His evidence was that he took his shoes off but otherwise wore his jeans, shirt and socks when going to bed. [22] When asked why he did not take off his pants, he said “Just it was late and I was tired. It wasn’t particularly hot. I didn’t – wasn’t planning on staying out so I didn’t have anything to get changed into, so I just went to bed in what I was wearing”. [23]

    21. AB 138.

    22. Tcpt, 27 July 2020, 193:4-9.

    23. Tcpt, 27 July 2020, 193:11-14.

The Complainant’s evidence as to the alleged assaults

27. The Complainant’s evidence was that she changed into her pyjamas before going to bed in Bedroom 2, saying that “I don't specifically have the recollection of putting them on and getting changed but I always sleep in pyjamas and I went to the trouble of collecting them so – I mean, that's all I can really say about it, I guess.” [24] Her evidence was that she “passed out straightaway” when she got into bed, almost as soon as her head hit the pillow. [25] Her account in chief as to what then occurred (and which formed the basis of Count 1) was as follows [26] :

    24. Tcpt, 12 February 2020, 110:48-50.

    25. Tcpt, 12 February 2020, 111:18-21.

    26. Tcpt, 12 February 2020, 111:23-112:11.

“Q.  Can you tell the Court what was the next thing that happened?

A.    I opened my eyes and I woke up to Andrew on top of me with his penis in my vagina.

Q.   Can you tell the Court what, if anything else, you recall about that? For example, were you wearing your clothes, how you were positioned.

A.    I was lying on my back and I don't remember – I didn't have my pyjamas on. I just – I just didn't think it was real.

Q.   Did you say you didn't think it was real?

A.    Yeah.

Q.    And I'm sorry to get to this level of detail. What, if anything, was Andrew doing?

A.    He had his penis in my vagina and he was just moving and then he took it out and put his hand up to his mouth and – sorry, and then I had saliva on my vagina and then he put it back in.

Q.    He put his penis back into your vagina?

A.    Yeah.

Q.    What, if anything, happened after that?

A.    Then I kept my eyes closed and I thought I must have been dreaming and so I kind of thought it would all just go away and then I felt him do the saliva thing again with his hand and then he reached his arm under my shoulders and, like, sort of sat me up and kind of guided me off the bed.

Q.    In that moment, what was your state of mind? What do you recall about your state of mind? What, if anything, were you thinking or perceiving?

A.    I honestly felt like it was a dream. Like, I almost felt like I was watching myself in a movie and I just thought if, like, it had to not actually be real, like, it actually had to be a dream because I would just wake up and it wouldn't be real.”

28. The Applicant denied that sexual intercourse had occurred, or that he even went into Bedroom 2 where the Complainant had retired to go to sleep. His evidence was that he went to sleep in Bedroom 1, dressed in his jeans, shirt and socks, and that he woke in that bedroom to the Complainant shouting at him and hitting him, and he said “What’s wrong? Why are you hitting me?” [27]

    27. Tcpt, 27 July 2020, 194:4-6.

29. In relation to Count 2, being the second charge of sexual intercourse without consent, the allegation was that after the act of intercourse alleged in Count 1, the Applicant moved the Complainant from the elevated bed in Bedroom 2 to the bed in which he had been sleeping in Bedroom 1, and that he again had penile-vaginal intercourse with the Complainant without her consent, knowing that she was not consenting:

Q.   You said he guided you off the bed. What was the next thing that happened, if anything?

A.    I don't actually remember getting down off the bed. And then the next thing I really remember was being laid down on the single bed in the other bedroom and – sorry, and then he got back on top of me and started again.”

30. This was also strenuously denied by the Applicant. As noted above, his case was that he woke in the bed that he had gone to sleep in, with the Complainant shouting at him and hitting him, and that that was the first thing he knew.

31. In relation to Count 3, being the charge of indecent assault, the act alleged was that after the act of sexual intercourse the subject of Count 2, the Applicant put saliva on his fingers by licking them and then applied that saliva with his fingers to the outside of the Complainant’s vagina. The Applicant also denied that the act alleged occurred.

32. Returning to the Complainant’s account, she indicated that the Applicant had lifted her from the bed in Bedroom 2 by putting his arm behind her shoulders and lifting her forward. [28] The Complainant gave evidence that she did not remember getting down off the bed in the original bedroom, [29] or the transition between the two bedrooms. [30] As noted above, she outlined that the next thing that she remembered was being laid down on the single bed in the other bedroom, and that the Applicant “got back on top of me and started again”, which she clarified as meaning that he “started having sex with me again, and put his penis in my vagina”. [31] She indicated that she had her eyes closed for most of the time, but that she had half opened her eyes to try and see what was happening, and that she saw the Applicant and closed her eyes again. [32]

    28. Tcpt, 13 February 2020, 164:20-21.

    29. Tcpt, 13 February 2020, 164:38-49.

    30. Tcpt, 13 February 2020, 165:6-17.

    31. Tcpt, 12 February 2020, 112:7-14.

    32. Tcpt, 12 February 2020, 113:19-21.

33. The Complainant gave evidence in relation to Counts 2 and 3 and the events that ensued, as follows:

“Q.  What, if anything, was he doing with his body?

A.    He was moving back and forth and then he took his penis out again and put more saliva on his hand and wiped it on me again.

Q.    After wiping his fingers on your vagina, what, if anything, did he do after that?

A.    He was just moving back and forth and I sort of half opened my eyes and I remember just thinking, like, he knows my eyes are closed, like, and I haven’t moved, like, he knows I’m asleep and then it just – like, it felt like it went on for ages and then it was just like, I realised it actually – I wasn’t dreaming and it was real.

Q.    Did you do anything once you had that realisation?

A.    Yes. I brought my leg up and I kicked him off me and I sat up and I slapped him in the face and yelled at him and I just said, ‘What the fuck do you think you’re doing?’” [33]

33. Tcpt, 12 February 2020, 112:16-31.

34. During cross-examination, the Complainant indicated that she saw one of the occasions where the Applicant put his hand up to his mouth and then wiped his hand on her vagina. [34]

    34. Tcpt, 13 February 2020, 163:25-164:6.

35. The Complainant indicated that the Applicant was wearing a shirt during the time of the alleged assaults, but that he did not have any clothes on from the waist down. [35] The Complainant said that the Applicant had said “What are you doing? Why are you hitting me?”, to which she said “Get the fuck out”, grabbed his clothes off the floor and “shoved them to him”, and then “grabbed him by the back of the hair and pretty much frog-marched him to the front door”. [36]

    35. Tcpt, 12 February 2020, 112:33-38.

    36. Tcpt, 12 February 2020, 113:36-45.

36. During her evidence-in-chief, the Complainant gave evidence that she opened the front door, pushed the Applicant out, and closed the door behind him, and then she ran back to the bedroom and started bawling. [37] She indicated that at this point, she was “very alert because I was in complete disbelief and I guess the adrenaline was racing and I felt very alert”. [38]

    37. Tcpt, 12 February 2020, 114:19-28.

    38. Tcpt, 13 February 2020, 137:50-138:1.

37. During cross-examination, the Complainant indicated that she had not given the Applicant a chance to put his pants on before marching him to the door. [39] She said that she did not believe that the Applicant was wearing pants from the time when she started hitting him in the bedroom to when he was pushed out of the front door. [40]

    39. Tcpt, 13 February 2020, 167:27-32.

    40. Tcpt, 13 February 2020, 167:43-50.

Mr Richards’ evidence

38. At this juncture, it is desirable to refer to Mr Richards’ evidence. As noted earlier in these reasons, Mr Richards had the initiative and good sense, influenced, as he explained, from his forensic training, to make a detailed note of what he had heard, seen and done, very shortly after the events in question. Mr Richards was cross-examined by reference to this note.

39. Mr Richards’ evidence was that he went to sleep at some point after 1am or 1.30am, although he was not certain, [41] but that he “was woken by noises”. [42] He was questioned further about the noises that he heard, and gave evidence as follows: [43]

    41. Tcpt, 22 July 2020, 29:8-10.

    42. Tcpt, 22 July 2020, 29:13.

    43. Tcpt, 22 July 2020, 29:15-31:10.

“Q.   All right. Can you describe the noises? Did they say anything?

A.    They were, they were quite muffled but they were clearly two people disagreeing and I couldn't make it out. In fact, I thought it was, I was in an apartment complex and I thought it was a domestic in, maybe, another unit.

Q.    So, you couldn't really hear where it came from?

A.    No. At that point, no.

Q.    And, you couldn't hear any, particular, words? Is that right?

A.    Not initially. No. But then as it got louder, I started to make out some sentences.

Q.    And, what did you hear when you could make out the sentences?

A.    I heard an angry female voice. And, I heard a, a very quiet male voice.

Q.    And, the female voice, did you recognise it then?

A.    It was [the Complainant’s].

Q.    Yes. And, what did you hear her say?

A.    Again, she, she was very angry.

Q.   Why do you say the word angry?

A.    The, the tone of her voice, like, she was, she was very, yeah, angry. She, she was saying things like, what the fuck do you think you're doing? You know. Who do you think you are? Yeah. Real, real, real, sort of questioning aggressive tone.

Q.    So, you heard her voice. Could you see [the Complainant], at this point?

A.    I couldn't see anybody.

Q.    And, did you hear any other voices?

A.    Well, then I heard the male voice and that was a much more subdued sort of questioning voice.

Q.    Did you recognise that person's voice?

A.    Not a, not initially but then as it came in to the same room that I was in, I recognised it to be Andrew's voice.

Q.    And, what did Andrew say? What could you hear Andrew say?

A.    He was more questioning. To say, what's, what's going on? What are you doing? Why are you hitting me?

Q.    So, what are you doing? Why are you hitting me?

A.    Yep.

Q.    Anything else that you can remember?

A.    No. It was a questioning tone. What's, what are you, why, why are you upset? Why are you hitting me? No, it was more, it was just a very reasoning tone trying to understand.

Q.    Could you see him when he was saying these words?

A.    No, I couldn't. So, I was asleep on the lounge, the eyes, my eyes were closed. I'd rolled over but I only saw them come in to my view from the left. I didn't, sort of, roll over and sit up and get involved. I, actually, didn't know what I was seeing. I was just watching.

Q.    So, you saw them at some point?

A.    Yeah. They came in to the room 'cause they went to the front door.

Q.    And, what did you see when they came in to the room?

A.    [The Complainant] was naked. She had Andrew by the scruff of the neck, by the scruff of the hair, and she had his head against the wall next to the door while she tried to undo the lock to open the door and obviously push him out. She sort of - she - she kept - again the similar language, like, you know, ‘Who do you think you are,’ kind of thing. Andrew wasn’t fighting back at all, resisting. He was fairly quiet.

Q.    Did Andrew say anything?

A.    I can’t say that he - he said he said nothing but he was - he was - he was not fighting back and I do recall him saying things along the lines of, ‘What - what - what’s going on? Why - why - why are you - why is this happening?’

Q.    What’s the next thing that - you said that she had him by–

A.    The hair.

Q.    –the hair.

A.    Yeah.

Q.    And she was trying to unlock the door.

A.    Which took a long time. At that point, I almost go up to sort of say, ‘Hey,’ and then there was enough light in the room that I could plainly 'see - I could really - I could see quite clearly. I don’t know if it was a full moon or what was it was or there was outdoor lighting, but there was enough light that I could see enough of what was going on.

Q.    Do you know where the light was coming from?

A.    No. I don’t know if it was just from other units or - or the streetlight. I don’t know if it was a full moon, but I could still vividly see. I was quite surprised when I saw that [the complainant] was naked. I could even see a very large bruise on her thigh, on her, like - so I just - I had pretty good vision.

Q.    You said she tried the lock for some time. Did she eventually get it open?

A.    Yes. She did, yeah.

Q.    And she [sic] happened then?

A.    She pushed Andrew out the door.”

Pausing at this point, under cross-examination, Mr Richards confirmed that the Applicant was fully dressed when Mr Richards saw him being thrown out of the apartment. [44] It is also relevant to note that there was in evidence a photograph showing the Applicant’s face/ear with scratch marks, [45] said to have been caused by the Complainant when “frog-marching” him to the front door. [46]

44. Tcpt, 22 July 2020, 43:23-24.

45. AB 144.

46. Tcpt, 28 July 2020, 284:17-20.

The Applicant’s account

40. At this point, it is necessary to set out the Applicant’s account of events: [47]

    47. Tcpt, 27 July 2020,193:37-194:36.

“Q.   Picking up on your evidence you put yourself into bed. Do you recall if you were on top of the covers or underneath the covers?

A.    I was on - under the covers, on the sheets.

Q.    What happen next?

A.    My next recollection was being woken up, with someone hitting me and yelling at me.

Q.    When that occurred could you see who it was?

A.    No. The room was quite dark.

Q.    Was it a male or a female voice?

A.    It was a female voice.

Q.    Do you recall what was said?

A.    Words to the effect of, ‘Who the fuck do you think you are?’

Q.   What, if anything, did you say?

A.    At that point I jumped out of bed and said, ‘What’s wrong? Why are you hitting me?’

Q.   Did you have any understanding of what was happening at that point in time?

A.    I had no idea.

Q.   What happened after you jumped out of bed?

A.    I was pushed up against the wall and then I was struck a few more times to the face.

Q.   Then what happened?

A.   The similar words were yelled by [the Complainant] at that point and I repeated again, ‘What’s wrong? Why are you hitting me?’

Q.   Did you move from that room?

A.   Yes. After she yelled something to the effect of, ‘Get the fuck out,’ which I agreed. I said, ‘Okay, but I can get my stuff?’

Q.   When you said, ‘Can I get my stuff,’ what happened at that point in time?

A.   She fumbled around, picked up my shoes off the floor and pushed those to me and then as I turned to go out she basically grabbed me by the back of the neck and actually pushed me faster towards the front door.

Q.   Did you end up against the front door?

A.   On the wall next to the front door, so she was holding my head against the wall there while she was trying to open the latch.

Q.   From when you first recall being struck to when you got to the wall how long did that take?

A.   It was very quick. I couldn’t say. It would be certainly well under a minute. 20 seconds, something like that, it was quite quick.”

Events following Applicant’s departure from the apartment

41. The Complainant’s evidence was that after she had kicked the Applicant out, Mr Richards came into the room she was in, but that she did not recall the conversation that she had with him. [48]

    48. Tcpt, 12 February 2020, 114:37-115:8.

42. Mr Richards’ evidence as to what occurred after the Applicant had been physically thrown out was as follows: [49]

    49. Tcpt, 22 July 2020, 31:12-32:10.

“Q.   Did she close the door?

A.    She did. She did close the door and then she ran back to bedroom 1 and at that point in time, I - well, when she got back in there, her screaming and crying was very, very loud and very confronting, to be honest with you, and that’s when I went in there to - to try and get an idea of what - what had happened.

Q.    You went into the room that she went into.

A.    Yep.

Q.    And did you speak to her in that room?

A.    I did. She was under a - under a quilt. She dived under a - a doona, a quilt. I couldn’t see her there, but she was yelling and screaming in the bed. She was angry.

Q.    When you said you couldn’t see her, was that because of the quilt?

A.    Yes, yes. It was up--

Q.   How much of her body had she covered?

A.    Pretty much her whole body was under the quilt and it took me - I don’t know. It took - took me a fairly reasonable amount of time for her to sort of realise that I was talking to her. When she did sort of acknowledge that I was there and she pulled her head out of the covers, you know, she - she sort of she made some pretty strong statements around, you know, ‘Who does he think he is trying to stick his dick in me,’ and things like that.

Q.    She said, ‘Trying to stick his dick in me.’

A.    Yeah.

Q.    Did you say anything in response to that?

A.    Well, that was kind of the first I sort of starting realising that this what might have been the situation and then it - then the door knocked. There was a knock at the door.

Q.    There was a knock on the door.

A.    Yeah.

Q.    Did anybody go to the door?

A.    Yeah, I did.

Q.    And what happened when you got to the door?

A.    So just before I got the door, you know, it wasn’t hard to figure out it was probably Andrew and I said to [the Complainant], I said, ‘What has he forgot? What’s still here that’ - thinking it might have been keys or whatever and there was two phones next to the bed and - and she - she saw them first and she - I think she went to grab them and said she, ‘He forgot his phone,’ and she was angry about it and I said, ‘I’ll take them,’ and I grabbed them and tried to sort of hopefully get to the front door on my own, and I - and I got to the front door. I had these two phones.”

43. Mr Richards gave evidence that when he opened the door, the following conversation occurred: [50]

“Q.    And what happened when you opened the door?

A.     Andrew was there and he - he sort of said to me, he said, ‘Is everything okay? Is [the Complainant] there? Can I talk to her,’ and at that point I don’t think [the Complainant] was quite at the door. I said, ‘Mate, I don’t think it was a good idea.’ He said, ‘Do you know what’s happening?’ He said, ‘I just woke up. She was kicking me,’ and I just - I said, ‘Mate, it’s not a good time. I think just - let’s just to this later.’ I gave him the phones and closed the door, but [the Complainant] got to the door as well.

Q.    And when [the Complainant] got to the door, was it still open or had you closed it by that time?

A.    I - I peeled her away from the door and closed the door myself.

Q.   Was she saying or doing anything when she got to the door?

A.   She was - she was trying to sort of say things to Andrew. I can’t remember exactly what she was saying, but she was still being quite aggressive.”

50. Tcpt, 22 July 2020, 32:36-33:1.

44. The Complainant then said that, shortly after the Applicant left having recovered his phones, she “got it in my head that I was going to find him and flog him”, and so she put her clothes on and went downstairs to look for him. [51] She said that she got about a third of the way up the street when she saw the lights of a vehicle pull up at the top of the street, and assumed that it was the Applicant getting into a taxi or Uber. [52] The evidence was that the Applicant got an Uber at 3.35am.

    51. Tcpt, 12 February 2020, 115:45-47.

    52. Tcpt, 12 February 2020, 115:49-116:5.

45. Mr Richards then went back to the room that the Complainant was in, and she was getting dressed. He was questioned as to what he saw at this point: [53]

    53. Tcpt, 22 July 2020, 33:35-50.

“A.   Her just getting dressed and I spoke to her in some way. I asked her some questions and while she was getting dressed, she - she was acknowledging me at this point and she made again statements like, ‘Who does he think he is trying to put his cock in me,’ and then she sort of looked at me. She paused for a second and she looked at me and she - and she said, ‘He licked his fingers just to try and get it in me,’ and she was demonstrating that action to me.

Q.   When you say she was demonstrating that action, can you recall exactly what she did?

A.   Yeah, she was just demonstrating licking her own fingers.

CROWN

PROSECUTOR: So the witness has just put his right hand up towards the face.

WITNESS:      Yep.”

46. Mr Richards said that the Complainant had an “angry” and “questioning tone” at this point. [54] He said that she grabbed her keys, and went to the door, and said that he guessed that she was looking for the Applicant. [55] When questioned whether he followed her, Mr Richards gave evidence as follows: [56]

“A.   I did but I was still in boxers, so it took me another short time to throw on some shorts and a shirt on and by the time I got downstairs, she was 50 metres up the street.

Q.    And when you got down the street, and you said she was about 50 metres up the street, did you see Andrew?

A.    I didn’t see Andrew, no, but I saw a car pulling away another 50 or a hundred metres up the street and as I caught up with [the Complainant], she just said, ‘That that’s him in the car..(not transcribable)..and then she turned around and kind of just sort of collapsed on the ground and started crying.

Q.    Was that on the street, was it?

A.    Yeah, out the street, yeah.

Q.    And what did you do when she collapsed on the street?

A.    I picked her up and walked her back to the unit.”

54. Tcpt, 22 July 2020, 34:7-10.

55. Tcpt, 22 July 2020, 34:28-30.

56. Tcpt, 22 July 2020, 34:33-48.

47. He gave evidence that when they were back in the apartment, he and the Complainant had a conversation as to what she said had occurred: [57]

“The son’s room was a - it had a bed that was kind of like - it was a novelty bed. It was raised quite high. And you had - you know? The kid had access to other things underneath it. It had a rail and a guard on it. She did - she said she went to sleep in that bed. And she felt someone starting to sort of feel her, touch her. And then she said she felt she was lifted out of that bed and helped to walk back down to the other room, which was I’d say bedroom one – the daughter’s room. And she says that’s when she said she realised or she thought - you know? She realised it was Andrew. And she thought it was a dream. But when she realised that’s when she started lashing out.”

Mr Richards clarified that the Complainant did not use the words “lashing out”, but that she had said that she had “started hitting” and “kicking” the Applicant. [58]

57. Tcpt, 22 July 2020, 35:41-49.

58. Tcpt, 22 July 2020, 36:1-6.

48. After going back into the apartment, the Complainant contacted her friend, Ms Katrina Merritt (Ms Merritt) at approximately 3.55am. [59] At the time of giving evidence, Ms Merritt had been a police officer with the New South Wales Police Force for 26 years. [60] The Complainant gave evidence that she said something along the lines of “Something’s happened. Can you come over?”, although she did not go into detail over the phone. [61] Ms Merritt came over within an hour, with the Complainant telling her what had happened, [62] although the Complainant could not recall exactly what she told her. [63] In cross-examination, the Complainant maintained that she could not recall exactly what she had said to Ms Merritt. [64]

    59. Tcpt, 12 February 2020, 116:16-44.

    60. Tcpt, 23 July 2020, 48:14-15.

    61. Tcpt, 12 February 2020, 116:26-44.

    62. Tcpt, 12 February 2020, 117:4-8.

    63. Tcpt, 12 February 2020, 117:36-40.

    64. Tcpt, 13 February 2020, 173:38-174:14.

49. Ms Merritt gave evidence that she received a phone call in the early hours of the morning on 9 December 2016 from the Complainant, [65] that the Complainant “was very upset”, and when Ms Merritt asked her what was wrong, the Complainant said ““I - I can’t talk. I - I can’t talk over the phone. Can you come over?” [66] Ms Merritt said that she “never heard [the Complainant] be so upset”, [67] and elaborated that the Complainant was crying and that it was unusual for the Complainant to call her at that hour, so Ms Merritt knew something was wrong. [68]

    65. Tcpt, 23 July 2020, 48:28-29.

    66. Tcpt, 23 July 2020, 48:37-42.

    67. Tcpt, 23 July 2020, 48:41.

    68. Tcpt, 23 July 2020, 48:46-48.

50. Ms Merritt outlined that she drove straight over to the Complainant’s apartment, which would have taken approximately 15 or 20 minutes. [69] She indicated that when she arrived, the Complainant was sitting on the lounge, and when Ms Merritt questioned her as to what had happened, the Complainant stated “[h]e raped me”. [70] Ms Merritt outlined that the Complainant was extremely upset, was crying, had red eyes, and was curled up on the end of the lounge, and that Ms Merritt had known the Complainant for a long time but had never seen her that upset. [71] When Ms Merritt questioned the Complainant who had raped her, she responded with the Applicant’s name, saying “My boss, how could he do this? I respected him. I thought he was my friend”. [72]

    69. Tcpt, 23 July 2020, 49:3-9.

    70. Tcpt, 23 July 2020, 49:23.

    71. Tcpt, 23 July 2020, 49:20-30.

    72. Tcpt, 23 July 2020, 49:32-35.

51. In relation to the alleged sexual assaults, Ms Merritt outlined that the Complainant had told Ms Merritt that after she went to sleep:

“She said that the next thing that she remembers is that Andrew was on top of her, kissing her. She said she was half asleep and she woke up to Andrew on top of her, kissing her and that he picked her up and carried her to, to the other room. The room that he was, originally, in. And then, she said that he raped her and he was inside her.” [73]

73. Tcpt, 23 July 2020, 50:1-6.

52. Ms Merritt said that the Complainant had told her that when the Applicant was on top of her and kissing her, the Complainant had indicated that she had been confused at that stage, and was not sure what was happening because she was asleep. [74] Ms Merritt gave evidence that the Complainant told her that she had been carried to the other bedroom, and that she had said that the Applicant was “on top of her and inside her”, and that the Complainant had said that “[h]e was inside my vagina. Oh my God. I hope I’m not pregnant. How could he do this to me? He kept licking his, his fingers because I wasn’t wet enough. I can’t believe he did this really”. [75]

    74. Tcpt, 23 July 2020, 50:8-13.

    75. Tcpt, 23 July 2020, 50:15-26.

53. Ms Merritt gave evidence that the Complainant had told her that the Applicant had “kept sucking his fingers and it was disgusting” and that once the Complainant realised what was happening, she “managed to grab him out of the room and she walked him to the front door and told him to leave”. [76]

    76. Tcpt, 23 July 2020, 50:40-43.

54. The Complainant gave evidence that she told Ms Merritt that she did not know what to do, with Ms Merritt reassuring the Complainant and calming her down a bit, before going through what the Complainant’s options were, [77] and reassuring her that it was all her decision. [78] The options outlined by Ms Merritt included reporting to the police and getting a Sexual Assault Investigation Kit (SAIK) procedure done. [79] In relation to this kit, Ms Merritt explained to the Complainant that there was a time frame in relation to getting one done, so that if she got that done, she could make any other decisions later. [80] Ms Merritt gave evidence that at the time she was telling the Complainant about her options, “she didn’t appear intoxicated” and that “I didn’t think she seemed drunk when I was speaking to her”. [81] Ms Merritt outlined that she had known the Complainant for 18 years, and that she was quite coherent with what she was saying, she was not slurring her words, she was very specific about what she was saying, and that she did not show the signs of intoxication. [82]

    77. Tcpt, 23 July 2020, 51:1-7.

    78. Tcpt, 12 February 2020, 117:4-8.

    79. Tcpt, 12 February 2020, 117:10-40.

    80. Tcpt, 12 February 2020, 117:23-26.

    81. Tcpt, 23 July 2020, 51:9-19.

    82. Tcpt, 23 July 2020, 51:21-28.

55. Mr Richards gave evidence that he left the apartment for approximately 15-20 minutes whilst the Complainant and Ms Merritt talked. Ms Merritt eventually drove Mr Richards back to where his car was parked at Mascot Fire Station, [83] and it was at this point that Mr Richards made his note of what he had heard and seen. [84]

    83. Tcpt, 23 July 2020, 52:1-8, 13-15.

    84. Tcpt, 22 July 2020, 38:3-20, and see [12] above.

56. The Complainant gave evidence that Ms Merritt and Mr Richards left her apartment at around 6am, and that she went to sleep until woken up at approximately 9.30am by a call from Ms Merritt. [85] After she got off the phone with Ms Merritt, she noticed that she had two missed calls from the Applicant’s work phone, [86] which were at 7.36am and 8.58am. [87] She gave evidence that she had phone calls with both Mr Richards and Ms Merritt later on that day, but did not recall what was said during those calls. [88]

    85. Tcpt, 12 February 2020, 118:1-7.

    86. Tcpt, 12 February 2020, 118:13-15.

    87. Tcpt, 13 February 2020, 138:33-48.

    88. Tcpt, 12 February 2020, 118:34-40.

57. Under cross-examination, Mr Richards accepted that, later that day, he was contacted by the Applicant who said to him “Do you know what happened?” and “I don’t know what happened”. [89] He also accepted that he had recorded in his statement that the Applicant had said to him “I woke up and [the Complainant] was hitting me”. Mr Richards said that what he had recorded the Applicant as saying “[t]was consistent throughout”. [90]

    89. Tcpt, 22 July 2020, 44:46-48.

    90. Tcpt, 22 July 2020, 44:40-44.

58. The Complainant gave evidence that later in the morning, at 11.41am, [91] she received a call from a number that she did not recognise and when she picked up, he said “Hey V”, and she recognised the Applicant’s voice and hung up straight away. [92]

    91. Tcpt, 13 February 2020, 139:17-35.

    92. Tcpt, 13 February 2020, 133:11-24.

59. The Complainant outlined that she messaged her friend, Ms Cara Peresson (Ms Peresson), and asked if she could come over. This text message was sent at approximately 10.30am and stated “Can you please come over”. [93] When Ms Peresson arrived, the Complainant gave evidence that she explained to her what had happened. In cross-examination, the Complainant accepted that she told Ms Peresson that after she had gone to sleep, the next thing she recalled was feeling pressure on her back, like she was being scooped up out of bed, and that she recalled being walked into her bedroom, but that in her mind she felt like she was dreaming. [94]

    93. Tcpt, 23 July 2020, 55:1-13.

    94. Tcpt, 13 February 2020, 173:27-31.

60. Inside the apartment, Ms Peresson observed the Complainant initially sit down on the lounge and then she curled herself up into a ball, putting her knees up to her chest and hugging her knees. [95] When Ms Peresson asked the Complainant what had happened, she responded with “Andrew raped me”, and she then burst into tears as soon as she said the sentence. [96] Ms Peresson gave evidence that the Complainant had told her that she felt like she had put pyjamas on before going to sleep, but that when she had woken up, she did not have the pyjamas on. [97] She told Ms Peresson that she was asleep in the loft bunk, and the next thing that she recalled was feeling pressure under her back, like she was being scooped up out of the bed and then led towards her bedroom, and that she said it felt like a dreamlike state. [98] Ms Peresson gave evidence that the Complainant said that the next thing she remembered was opening her eyes and seeing the Applicant licking his fingers, and she had performed the gesture of licking her left hand. [99] The Complainant told Ms Peresson that “[h]e licked his fingers to lubricate me and then he stuck his dick inside me”. [100]

    95. Tcpt, 23 July 2020, 56:7-11.

    96. Tcpt, 23 July 2020, 56:22-29.

    97. Tcpt, 23 July 2020, 57:26-31.

    98. Tcpt, 23 July 2020, 57:33-37.

    99. Tcpt, 23 July 2020, 57:39-44.

    100. Tcpt, 23 July 2020, 57:48-49.

61. Ms Peresson said that the Complainant put her foot up against the Applicant’s chest to push him off and said “What are you doing?”, to which he replied “Why what’s wrong?” Ms Peresson continued to give evidence as follows:

“She said he was confused why she was asking the question, and so while she was sort of yelling at him she said he was putting his pants on at that point. And then she grabbed him by the back of the neck and walked into the front door to put him - to chuck him out of the unit. She said it was quite dark at the time and she fumbled quite a bit to get the door open. She said it took a while to get it open and at this point she said she was completely naked.” [101]

101. Tcpt, 23 July 2020, 58:2-9.

62. Ms Peresson offered to call the police station for the Complainant, which she did. [102] Ms Peresson also contacted the RPA Rape Crisis Team. [103] The Complainant indicated that after Ms Peresson contacted the police, two police officers whom the Complainant believed were general duties officers came over and said that they had to establish a crime scene, so they “basically just asked us not to touch anything and they just sat there pretty much”. [104]

    102. Tcpt, 13 February 2020, 133:26-41; Tcpt, 23 July 2020, 59:29-34.

    103. Tcpt, 23 July 2020, 59:33-34.

    104. Tcpt, 13 February 2020, 133:47-134:1.

63. Ms Peresson had an appointment that was coming up at midday, and so another friend, Ms Belinda Wheeler (Ms Wheeler) came over when Ms Peresson left. [105] Ms Wheeler arrived after the police had arrived, [106] at around midday, [107] and Ms Peresson gave evidence that she told Ms Wheeler the story that the Complainant had told her, but not to the same extent or detail. [108] The Complainant outlined that she “explained most of it” to Ms Wheeler, and told her that the Applicant had “had sex with me while I was asleep”. [109]

    105. Tcpt, 23 July 2020, 59:41-46.

    106. Tcpt, 23 July 2020, 59:45-46.

    107. Tcpt, 23 July 2020, 65:30-31.

    108. Tcpt, 23 July 2020, 60:7-15.

    109. Tcpt, 13 February 2020, 134:11-25.

64. Later that day, Ms Wheeler took the Complainant to Mascot Police Station, [110] where the Complainant gave a statement which was taken by Detective Amy Gerrish. [111] Whilst the Complainant was at Mascot Police Station with the Detective, she received a missed call from the Applicant’s personal number, at 3.23pm. [112]

    110. Tcpt, 23 July 2020, 68:12-13.

    111. Tcpt, 13 February 2020, 134:30-37.

    112. Tcpt, 13 February 2020, 139:42-50.

65. Later in the evening, the Complainant had a SAIK performed at RPA Hospital. [113] According to the Expert Certificate by Dr Gock at the RPA Sexual Assault Service, the complainant was examined between the hours of 8pm-9.30pm on 9 December 2016, with the examination thus taking place 17-18 hours after the alleged assault. [114]

    113. Tcpt, 13 February 2020, 134: 39-49.

    114. AB 151.

The Y-Filer DNA Evidence

66. Y-Filer DNA is a DNA identification system that targets areas on the Y-chromosome (male specific). [115] Testing using the Y-Filer system employs the same technology as conventional DNA typing, with the difference being that the gender-determining chromosome of the male (the Y chromosome) is targeted in this testing. [116]

    115. AB 189.

    116. AB 196.

67. Genital swabs were taken from the Complainant, and the results of the DNA analysis were the subject of two analysis reports by Ms Virginia Friedman (Ms Friedman), dated 28 March 2017 and 24 April 2019, which were extracted as part of Ex L in the trial.

68. In relation to the report dated 28 March 2017, the following results were produced:

Item No	Item Description	Biological Fluid Testing	Results
1	SAIK No: Y002667
1a	Reference buccal sample	A DNA profile was recovered
1b	High vaginal smear	Semen not detected
1b	High vaginal swab	Semen not detected	This item has been stored at the NSW Forensic and Analytical Science Service.
1c	Low vaginal smear	Semen not detected
1c	Low vaginal swab	DNA testing was carried out using the Y-filer System. The male profile recovered matched the Y-filer profile of Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this profile is expected to occur in approximately 1 in 750 unrelated males in the general population
1d	Vulval smear	Semen not detected
1d	Vulval swab	The DNA recovered has the same profile as [the Complainant].
1e	Endocervical smear	Semen not detected
1e	Endocervical swab	Not examined. This item has been stored at the NSW Forensic and Analytical Science Service.

69. In relation to the report dated 24 April 2019, the following results were produced:

Item No	Item Description	Biological Fluid Testing	Results
1b	High vaginal swab	The DNA recovered has the same profile as [the Complainant]. Additional DNA testing was carried out using Y-Filer Plus. The partial male DNA profile recovered has the same Y-Filer Plus profile as Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this partial profile is expected to occur in approximately 1 in 470 unrelated males in the general population.
1c	Low vaginal swab	The DNA recovered has the same profile as [the Complainant]. Additional DNA testing was carried out using Y-Filer Plus. The male DNA recovered has the same Y-Filer Plus profile as Andrew Thomas DADLEY (Barcode No. XPS00066550) and is also expected to match all males on his paternal line. Additionally, this profile is expected to occur in approximately 1 in 750 unrelated males in the general population
1e	Endocervical swab	Semen not detected

70. During the first trial, the Applicant had taken objection to Y-filer evidence relating to the Complainant’s underwear and genital swabs, and made an application for exclusion on the basis of either relevance or under s 137 of the Evidence Act 1995 (NSW). [117] A considerable volume of material was placed before Bennett SC DCJ on the voir dire, including expert reports. Various experts were examined and cross-examined.

    117. AB 547.

71. With respect to the DNA evidence from the genital swabs, the Applicant had submitted that there was “a significant risk of secondary transference”, [118] and that the probative value of the DNA evidence from the genital swabs was low, for the following reasons:

“Firstly, there is no evidence of sperm or seminal fluid and DNA testing for saliva was not undertaken. The DNA identified is trace DNA detected in very small quantities. Secondly, the DNA evidence was of such low concentrations that it could not be identified using a DNA profiler rather the evidence was obtained using y-filer. Y-filer evidence has a significantly low level of comparison compared to DNA profile. Whereas, DNA profile refers to the likelihood of a similar profile as 1 in 100 billion the y-filer refers to the profile occurring in 1 in 470 or 1 in 750. Thirdly, the use of partial y-filer significantly reduces the probative value. Finally, the risk of secondary transference is high. The complainant grabbed the accused and 'frogmarched him out the door'. There is a real prospect that trace quantities of DNA were transferred between 3am and 9pm. The complainant was observed by Mr. Richards in the bed where the accused slept. She sat in the house and no doubt touched her genitals and went to the toilet during the course of the day.”

The Applicant thereby submitted that the danger of misuse of the evidence was high, and that the evidence should be excluded.

118. AB 550.

72. In a decision of 12 February 2020, Bennett SC DCJ rejected the application to exclude the evidence in relation to the genital swabs, holding that it had significant probative value. His Honour outlined that he did not:

“accept the submissions on behalf of the accused that the evidence ought to be excluded because of the risk of transference arising from of [sic] the location from which the swabs were taken.

I have no[t] overlooked the acknowledgment that one cannot infer from this evidence alone how it was that the material from which the DNA was harvested was placed at the locations where the swabs were taken, including whether it was from any particular appendage of the accused.

I have not overlooked the proposition to be advanced on behalf of the accused that there was at least the risk of transference from the circumstances in which the accused and the complainant were within that apartment, including that upon a test to which there is reference in the material, performed upon the accused, he was shown to be someone who sheds cells at a high rate, increasing the scope for him to have left cells with his DNA whenever his hands came into contact with other surfaces.

I propose to allow the Crown to adduce the evidence of the DNA harvested from the vaginal swabs taken from the complainant”.

73. As earlier explained, this ruling in effect carried through to the second trial and the Y-filer evidence was tendered and relied upon by the Crown. During the course of the trial, evidence was given by Ms Friedman and Dr Gock who, as explained above, had conducted an examination of the Complainant on the night of 9 December 2016.

Grounds of appeal

74. The Applicant relied upon the following grounds of appeal:

“(i)   The trial judge erred in admitting the y-filer evidence.

(ii)    The verdict of not guilty in relation to Count 1 is inconsistent with the verdict of guilty in relation to Counts 2 and 3 and the verdicts of guilty are unsustainable.

(iii)   The verdicts of guilty in relation to Counts 2 and 3 were unreasonable and cannot be supported having regard to the evidence”.

75. It is convenient to deal with the inconsistent verdict and unreasonable verdict grounds first, reflecting the way in which argument was advanced on appeal.

Inconsistent verdicts

76. As has been outlined in a number of cases before the High Court and this Court, the test to be applied in considering a ground of appeal based on alleged factual inconsistency between verdicts is one of logic and reasonableness: see MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie); Nguyen v R [2021] NSWCCA 85 at [61] (Nguyen); Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [10] (Keen); Bussey v R [2020] NSWCCA 280 at [58] (Bussey); Kim v R [2020] NSWCCA 288 at [26] (Kim); and Roos v R [2019] NSWCCA 67 at [42] (Roos). As was recently observed in Long (a pseudonym) v R [2021] NSWCCA 212 at [90], one cannot assume that different verdicts are inconsistent merely because a jury returns different verdicts with respect to different counts in respect of the same complainant.

77. In order to succeed on this ground, the test as stated by Devlin J in R v Stone (Court of Criminal Appeal (UK), 13 December 1954, unrep), and as approved by the High Court in MacKenzie at 366, is that the Applicant:

“…must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”

78. As Gleeson JA (with whom Harrison and Davies JJ agreed) outlined in Roos at [43], if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred, there citing MacKenzie at 367. See also Jafary v R [2018] NSWCCA 243 at [31] (Jafary).

79. Gleeson JA in Roos properly noted that it is to be kept in mind that a verdict of “not guilty” does not necessarily imply any “want of confidence” in the complainant, but “may simply reflect the cautious approach to the discharge of a heavy responsibility” (at 61), citing MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (MFA).

80. MFA was recently applied by this Court in Gage v R [2021] NSWCCA 222, where Fagan J (at 89) noted that the joint judgment in MFA identified two factors that may cause a jury rationally to return differing verdicts for multiple counts of sexual offending against a single complainant, namely that:

1. where there is no objective evidence of sexual offences some jurors may, reasonably, not be satisfied beyond reasonable doubt upon counts for which there is only the word of the complainant, without supporting testimony; and

2. the jury may perceive that “the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others”.

   81. Similarly, recently in Nguyen at [63], Wilson J (with whom Bathurst CJ and Beech-Jones J agreed) outlined that it is “not universally the case that a not guilty verdict returned against one count points to the jury’s rejection of the complainant as a witness of truth. A jury is entitled to, and should, take a far more careful and nuanced approach than that to assessing the reliability of witness testimony”.

   82. In Ganiji v R [2019] NSWCCA 208 at [13], Basten JA (with whom Button and Lonergan JJ agreed) said that, in a case where all counts rest on the evidence of a particular witness, a conviction on one count accompanied by acquittal on another does not, absent further analysis, necessarily demonstrate inconsistency. His Honour observed that:

   “The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects.”

See also Keen at [9].

83. In Bussey at [61], Harrison J (with whom Hoeben CJ at CL and Bellew J agreed) said that an appellate court should not assume too readily that mixed verdicts are inconsistent, as mixed verdicts arise “from the burden and standard of proof, the requirement of separate verdicts and the role of the jury”. See also Martin v R [2020] NSWCCA 192 at [68].

84. In the context of a case involving multiple sexual assaults against a single complainant, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34] (Markuleski), Spigelman CJ observed that:

“In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M v The Queen, MacKenzie and Jones quoted above.”

See also Jafary at [32].

85. In Jones v The Queen (1997) 191 CLR 439 at 453; [1997] HCA 56, it was observed in the joint judgment that:

"The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count",

and that:

"It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."

86. In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], Simpson J (as her Honour then was, and with whom McClellan CJ at CL and Latham J agreed) observed that:

“Before… an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.” (emphasis in original).

See also Bussey at [60]; Kim at [27]; and Jafary at [37].

87. As Payne JA said in Kim at [37], the Court must scrutinise the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record. His Honour referred in this regard to MFA at [23], and ML v R [2015] NSWCCA 27 at [46].

88. Questions of fact and degree are involved in every case which may affect the ultimate assessment of the effect upon the credibility of the complainant in the particular case before the Court when the complainant's evidence is not accepted to the criminal standard on some counts: see Markuleski at [36] and [238].

89. In my opinion, the verdicts on Counts 2 and 3 were inconsistent in the requisite sense with the Applicant’s acquittal on Count 1. This acquittal was explicable, in my view, only by doubts the jury must have held as to the Complainant’s credibility. There were no other eyewitnesses and, as was submitted by Mr Johnston SC who appeared for the Applicant, the events founding the three complaints were so intertwined, both temporally and contextually, that it is a logical affront to accept the inconsistency between the acquittal and the convictions.

90. The Complainant’s account which the jury heard as to what she said happened to her in Bedroom 2 (the scene of Count 1) was very detailed. It has been set out at [27] above. The jury was self-evidently unprepared to accept it to the requisite standard of beyond reasonable doubt, and this was so even though her accounts shortly after the event given to Mr Richards and Ms Merritt involved a degree of corroboration.

91. The Complainant’s account of the events comprising Count 1 could not be divorced from her accounts of Counts 2 and 3. On her evidence, the matters constituting the underlying events took place over a short time continuum and really as part of a sequence which involved the Applicant:

1. first climbing on to the elevated bed in Bedroom 2,

2. removing the Complainant’s pyjamas,

3. having penile-vaginal intercourse with the Complainant without, on one view of her account, the Complainant being conscious that this was happening,

4. then, for reasons that were not obvious or apparent, choosing to move the Complainant (in a way which on her own evidence under cross-examination she could not remember [119] ) from that elevated bed (which involved either lifting her 67kg body over the sleeping rail or manoeuvring her down the ladder) into a second bedroom, and

   119. Tcpt, 13 February 2020, 162:10-12.

5. then having further penile-vaginal intercourse with the Complainant until the Complainant suddenly realised what was happening and reacted by screaming at the Complainant and frogmarching him out of the apartment.

   92. In oral submissions, Mr Johnston emphasised the following sequence of the Complainant’s examination-in-chief to support his contention as to the interconnectedness of Count 1 with Count 2: [120]

       120. Tcpt, 12 February 2020, 112:7-14.

   “Q.   You said he guided you off the bed. What was the next thing that happened, if anything?

   A.     I don’t actually remember getting down off the bed. And then the next thing I really remember was being laid down on the single bed in the other bedroom and – sorry, and then he got back on top of me and started again.

   Q.    When you say ‘started again’, what do you mean by that?

   A.    He started having sex with me again, and put his penis in my vagina.” (emphasis added).

   93. The submission put, which I accept, is that the Complainant tied the first aspect of her account (which translated into Count 1) with the second aspect (which translated into Count 2). The description of Count 2 was built on a foundation of fact that Count 1 occurred.

   94. Taking into account the non-exhaustive matters identified by Wood CJ at CL in Markuleski at [235], this was not a case where:

6. the Complainant’s account to the jury as to what occurred in Bedroom 2 was accompanied by any concession on the Complainant’s part as to the possibility of faulty recollection in contrast to what had occurred in Bedroom 1;

7. the Complainant’s evidence in relation to Bedroom 2 was any less particular than as to what had allegedly occurred in Bedroom 1;

8. the Applicant’s evidence only addressed what was alleged to have occurred in Bedroom 2, and not Bedroom 1;

9. the acquittal was returned in relation to a less serious offence; or

10. the history of wrongdoing was lengthy and involved many incidents over a period of time, or conversely involved a large number of events within a very short time frame.

    95. The absence of these matters renders it very difficult to identify a possible or plausible basis for differentiating the verdict of acquittal in respect of Count 1, and the verdicts of guilty in respect of Counts 2 and 3.

    96. The Crown, as has been noted above, sought to draw a subtle and, on the facts of the present case, ultimately chimerical distinction between the Complainant’s credibility and reliability, submitting that the explanation for any deficiencies in the quality of the Complainant’s evidence affecting her reliability in relation to Count 1 lay in the fact that she was under “the considerable disadvantage of having been asleep at the time of the alleged assault combined with her having consumed a moderate quantity of alcohol”. There are two difficulties with this submission.

    97. First, the amount of alcohol consumed could not be described as “a moderate quantity”, and if this was a factor which influenced the jury’s assessment of the Complainant’s reliability in respect of Count 1, the close temporal proximity, on her account, of Counts 1 and 2 does not supply a rational explanation for the different verdicts.

    98. Secondly and perhaps more fundamentally, the submission to the effect that the Complainant was under “the considerable disadvantage of having been asleep at the time of the alleged assault” simply does not accord with the detailed tenor of her evidence in relation to Count 1. There was a real tension between the detail of the Complainant’s account as to what the Applicant was said to have done in Bedroom 2 and other parts of her evidence, relied upon by the Crown, that she was half asleep and thought that she was dreaming.

    99. The Crown also submitted that the fact that the Complainant’s underpants were found in Bedroom 1 rather than Bedroom 2 “to the extent that the inference that they were removed in Bedroom 1 may suggest intercourse commenced there” provided a rational foundation for the guilty verdict in respect of Counts 2 and 3, even though no guilty verdict was returned in relation to Count 1. I am unable to agree.

    100. The location of the Complainant’s underpants in Bedroom 1 was inconsistent with her overall account and it was not in dispute that the Complainant was naked when she evicted the Applicant. No part of her account in relation to Count 2 involved the Applicant having removed her underwear in Bedroom 1. Moreover, the Complainant’s evidence was that when she followed the Applicant on to the street after he had returned to collect his mobile phones, she got dressed and then returned to Bedroom 1 where, later that morning, after Ms Merritt and Mr Richards left, she went back to sleep. At what point the underpants that were found in Bedroom 1 were removed, and whether or not by the Complainant herself after she returned to the apartment having left it dressed to chase the Applicant, was not explored in the evidence.

    101. The fact that the Complainant’s underpants were found in Bedroom 1 (where the Complainant often slept in any event, there being two beds in that Bedroom) does not provide a rational explanation for the difference in verdicts. Nor does the Y-filer DNA evidence provide any basis for differentiating the verdicts in relation to Count 1, on the one hand, and Counts 2 and 3 on the other hand.

    102. For these reasons, the challenge to the jury’s verdict in respect of Counts 2 and 3 should be upheld.

    103. In any event, for reasons explained below, even if the verdicts were not inconsistent, they were, in my opinion, unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).

Unreasonable verdicts

104. The principles applying to the consideration of an unreasonable verdict ground are well-known and well-rehearsed. In M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ stated that:

“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.

…

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted).

105. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the plurality outlined that:

“11     It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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’.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as “unreasonable” or such as “cannot be supported, having regard to the evidence”.’

13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

...

14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.’” (footnotes omitted),

106. Further guidance was provided by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] with respect to the role of the jury, as follows:

“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).

See also Rogerson v R; McNamara v R [2021] NSWCCA 160 at [199].

107. More recently, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], [43]-[45] (Pell), the High Court outlined that:

“39    The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

…

43      At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing ‘the unreasonableness ground’ was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:

‘whether it 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’.

44      The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:

‘But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the applicant's guilt.’ (footnote omitted; emphasis in original)

45      As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.” (footnotes omitted).

108. Turning from these authorities to a consideration of the reasonableness of the jury’s verdicts in respect of Counts 2 and 3, I have carefully reviewed the entirety of the evidence as the authorities require, mindful of the necessary advantages that a jury possesses in relation to assessing the witnesses giving evidence before it.

109. One matter strongly emphasised on behalf of the Applicant was the inconsistency between the Complainant’s account and Mr Richards’ account of the Applicant’s state of dress at the time he was “frog-marched” by the Complainant to her front door. According to the Complainant, the Applicant had no pants on when she became conscious that he was having intercourse with her in Bedroom 1, and she kicked and grabbed him and, on her own account, virtually instantaneously dragged him to the front door and kicked him out of the apartment whilst still without his pants or underpants (see [35] above). On the other hand, Mr Richards’ account was that the Applicant was fully clothed when he observed the Applicant being despatched from the premises. This was no trivial or small inconsistency.

110. No question was raised about Mr Richards’ credibility or reliability as a witness and, on any view, he had had considerably less to drink than the Complainant at the Christmas party, and had abstained from a gin and tonic when he returned to the Complainant’s apartment with the Applicant. The Crown’s written submissions suggested that Mr Richards may not have accurately perceived the Applicant’s state of dress, but this was not put to him and his evidence in this regard was unchallenged at trial.

111. Mr Richards’ unchallenged evidence in this regard was entirely consistent with the Applicant’s account of events, including that he was and at all times remained fully clothed, including when he was confronted by the Complainant hitting him and screaming at him, and when he was thrown out of the apartment. The tension between Mr Richards’ account of the Applicant’s state of dress and the Complainant’s account should have raised a serious doubt as to the credibility of her account as to what had occurred in Bedroom 2, especially given the very short space of time, on her account, between her kicking him and becoming alert to what was happening to her, and throwing the Applicant from the apartment. That account did not admit of the possibility of the Applicant having put his underpants and jeans back on before being thrown out.

112. Mr Johnston submitted that Mr Richards’ evidence in this regard was unchallenged evidence directly inconsistent with the Complainant’s account in a significant respect which required the jury, acting rationally, to have entertained doubt as to the Applicant's guilt. He called in aid the significance placed by the High Court on the unchallenged evidence of Monsignor Portelli in Pell.

113. In my view, the important tension in the evidence between that of the Complainant and that of Mr Richards, and the unchallenged nature of the latter should only have compounded the doubt that the jury undoubtedly did have as to a significant component of the Complainant’s account, namely as to what had occurred in Bedroom 2. As has been noted in the previous section of these reasons, the jury was not satisfied beyond reasonable doubt as to what the Complainant said had transpired. It was for this reason that the Applicant was acquitted on Count 1.

114. The position was further compounded by the Complainant’s assessed state of intoxication at the time of the alleged assaults (see [24] above) and the implausibility in aspects of her account, including that the Applicant removed the Complainant’s pyjamas and underwear without her knowledge or without waking her; the Applicant inexplicably ceasing sexual activity in Bedroom 2 for the purpose of moving the Complainant to Bedroom 1 and recommencing sexual intercourse without consent there; that the Complainant was not awake whilst this occurred; and the significant practical difficulties of moving the Complainant off the raised bed in Bedroom 2 into Bedroom 1, whilst the Complainant was not awake.

115. Together, these matters must, in my view, have caused a doubt in the mind of the jury as to whether or not the Applicant was guilty in respect of Counts 1 and 2. That doubt would, moreover, have been reinforced by the Applicant’s own words and tone at the time of the alleged assaults – “What’s going on? What are you doing? Why are you hitting me?”, and his subsequent questions to Mr Richards “Do you know what’s happening? I just woke up. She was kicking me.”[121]

     121. See [43] above.

116. It is impossible to escape the conclusion that the fragment of DNA which was detected in the Complainant’s vagina was critical to the jury’s returning of a verdict against the Applicant. But there were a number of difficulties with that evidence.

117. One particular difficulty emerged from the following passage of evidence of Ms Friedman in chief during the trial: [122]

     122. Tcpt, 24 July 2020, 158:4-30.

“Q.   Just in relation to the evidence you've given about the results. You tested 5 various swabs that were taken inside the vagina. Is there any factors that are relevant to how long DNA stays in, say, for example, the areas that you tested, the swabs, to the high vagina, the low vagina and the vulva?

A.    Yes, a lot of tests have been done to look at the persistence of cells or - and DNA in the vaginal orifice. It’s - it’s termed as the vaginal orifice. It’s a hostile environment. The sperm that are - necessarily have to travel through the vagina to impregnate an egg in reproduction have to be coated in a fairly thick coat to withstand the processes that the female body has in place to get rid of any foreign DNA, to make sure that they - there’s less likelihood of infection. So any DNA that’s placed into the vagina can be subject to degradation, dilution by vaginal fluid, drainage simply by gravity and this happens over a period of time. The - it’s - the DNA that is deposited into that area doesn’t have a thick coating such as a sperm cell. In other words, it’s just a skin cell or that type of cell. It doesn’t survive for very long. Current testing and investigations indicate that skin cells don’t survive for very long. The current guidelines I believe are up to 12 hours, but we’re looking at extending it possibly to within 24 hours.

Q.    And you later note that you didn’t find any semen on the swabs, but you found DNA.

A.    Yes.

Q.    Are you able to say what particular DNA it is?

A.    I can’t say for certain where the DNA came from, other than most likely from skin cells of some sort.” (emphasis added).

118. The significance of this passage of evidence and, in particular, the evidence which has been emphasised in italics is that the swabs of the Complainant’s vagina were taken at some time between the hours of 8pm-9.30pm, whereas the alleged assaults occurred at or about 3.00am, that is to say, more than 17-18 hours earlier. This fact, coupled with Ms Friedman’s evidence and the absence of any detection of semen in the Complainant’s vagina, had a twofold significance.

119. First, it suggested that, to the extent that the jury reasoned that the fragment of DNA was that of the Applicant, it had survived notwithstanding Ms Friedman’s evidence which was to the effect that it would not have survived for more than 12 hours.

120. Secondly, it necessarily increased the likelihood that the DNA had been innocently transferred at some time within the 12 hours preceding the Complainant’s examination. This was what was described as a secondary transfer.

121. In this context, it is to be recalled that the Complainant would have picked up traces of the Applicant’s DNA when physically dragging or “frog marching” him out of the apartment shortly after 3.00am. The evidence of the Applicant, the Complainant and Mr Richards was consistent in this regard and, as also noted earlier in these reasons, the Complainant’s actions resulted in the Applicant sustaining significant scratching to his ear and face. The Applicant’s skin cells and thus DNA would therefore likely have been transferred to the Complainant’s hand by this means. The possibility could not be excluded that the Complainant had at some stage subsequently touched her vagina in the course of the 12 hours preceding her medical examination.

122. There was also the possibility that the Complainant could have picked up traces of the Applicant’s DNA when she returned naked to the bed in Bedroom 1 and placed herself under the doona, as recounted by Mr Richards, before a little later putting her clothes on to follow the Applicant on to the street.

123. In this context, Mr Johnston emphasised that Ms Friedman ultimately accepted that in terms of the male DNA detected, she could not “say whether the DNA is more likely to have originated there through primary or secondary transfer”. [123] Earlier in her evidence, she had said that she could not say how the small trace of male DNA that was detected in the Complainant’s vagina had got there:

     123. Tcpt, 24 July 2020, 168: 34-37.

“I can’t say how the DNA got there. All I can say is that something that has DNA on it that matches Mr Dadley has been inserted into that area.” [124]

124. Tcpt, 24 July 2020, 168:23-24.

124. Mr Johnston submitted that the equivocality of this evidence was reinforced by the absence of any evidence of semen being detected in the Complainant’s vagina as a result of the testing that was undertaken on the evening of 9 December 2016. In oral address, he contended that:

“In this instance, because it was such a small quantity, because it wasn't semen, and because it's effectively microscopic and nobody can see where its' sourced from, that it doesn't ultimately assist in the resolution of that particular point as to whether it was through primary or secondary transfer. That's where the concern is raised on behalf of the applicant in this matter, in which there is a risk of misusing the evidence to give it some form of elevated significance that it's somehow consistent with sexual intercourse. Yes, it is consistent with sexual intercourse, but it's equally consistent with secondary transfer.”

125. The Applicant relied upon the evidence from the Y-filer results of male DNA other than that of the Applicant being detected on the left hip of the Complainant’s underwear as illustrating the ease of secondary transfer of DNA traces. Thus, Ms Friedman was asked: [125]

     125. Tcpt, 24 July 2020, 164:19-41.

“Q.   On the assumption that [the Complainant] had no direct physical contact with a male in a sexual context other than what's alleged in this matter, it certainly suggests that the male DNA that was detected on the left hip, for example, could well be the product of some form of secondary or tertiary transference. Is that correct?

A.    That's possible. Yes.

Q.    And, from your point of view when you're analysing it, there's no way of determining firstly, how long that male DNA on the left hip had been there. Is that correct?

A.    Correct.

Q.    And, it's not possible to determine whether the three or more different sorts of male DNA got there at the same time or at different times. Is that correct?

A.    They could have been at different times or similar times. Yes.

Q.    Now, that process of secondary transference or tertiary transference, there's any number of possibilities as to how that could take place but one example may well be that [the Complainant], at some stage or another, has shaken hands with a male during the course of an evening and then, sometime later, used that same hand to push her underpants down at some point. Perhaps when she's going to the toilet?

A.    Yes. That's possible.”

126. In DPP v Wise [2016] VSCA 173 at [69]-[70], the Victorian Court of Appeal (Warren CJ, Weinberg and Priest JJA) observed:

“As we have said, when the DNA evidence is properly evaluated, the presence of the respondent’s DNA in the underpants can establish no more than that MA had come into contact with the respondent, or with some other person or object that had come into contact with the respondent. It may be that the presence of respondent’s DNA inside the underpants is explicable by transference connected with oral sex, but, at the risk of repetition, in our view to attempt to draw an inference to that effect would be wholly speculative. The presence of Ms VL’s DNA in the mixture means that it would not be open safely to hypothesise other than that the presence of the respondent’s DNA may have been attributable to transference in the course of other activities during the events at LR’s house. Thus, as we have said, the evidence from the first sample has no (or very little) probative value.

Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the ‘CSI effect’. The ‘CSI effect’ is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings.  As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value. By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy — no matter the directions of a trial judge — and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small.”

See also Director of Public Prosecutions v Paulino (2017) 54 VR 109; [2017] VSCA 38 at [103].

127. Contrary to a submission made by the Crown, the Y-filer DNA evidence was incapable of overcoming the other considerations detailed earlier in these reasons that rendered the jury’s verdict in relation to Counts 2 and 3 unreasonable. Indeed, in view of the evidence of Ms Friedman as to the inability of DNA to survive in the vagina for more than 12 hours and which is set out at [117] above, that evidence was more consistent with a secondary transfer as a result of the Complainant having picked up the Applicant’s DNA in relevantly innocuous circumstances.

Admission of Y-filer evidence

128. As has already been noted, the Y-filer evidence was the subject of objection at the first trial before Bennett SC DCJ and the Applicant was effectively bound by this decision by reason of s 130A(3) of the Criminal Procedure Act.

129. In view of the conclusions I have reached in relation to inconsistent and unreasonable verdicts, it is strictly not necessary to address this issue, although it must be noted that the key evidence of Ms Friedman to which I have referred at [117], [123] and [125] above was adduced at the second trial and not in the course of the voir dire before Bennett SC DCJ.

130. On the evidence before his Honour on the voir dire, I am not satisfied that there was any error in admitting it, although the matter was very finely balanced. Had the evidence referred to above been elicited on the voir dire, I may well have taken a different view.

Conclusion

131. It follows from the above that the Applicant should be granted leave to appeal, his appeal allowed, his conviction quashed and sentence set aside.

132. WALTON J: After reviewing the evidence, I agree with the orders proposed by Bell P for the reasons given by His Honour.

133. BELLEW J: I have had the advantage of reading, in draft, the judgment of Bell P, and I have undertaken my own review of the evidence.  I agree with the orders proposed by his Honour, for the reasons his Honour has given.

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Endnotes

Decision last updated: 09 November 2021