Darby v R

[2016] NSWCCA 164

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Darby v R [2016] NSWCCA 164
Hearing dates:	2 November 2015
Date of orders:	11 August 2016
Decision date:	11 August 2016
Before:	Gleeson JA at [1] Rothman J at [2] Bellew J at [207]
Decision:	(1)   Appeal be allowed in part; (2) The conviction of the Appellant, Glen Paul Darby, on Count 9, indecent assault, contrary to s 61L of the Crimes Act 1900, be set aside and the conviction quashed; (3)   The Court direct a judgment and verdict of acquittal of the Appellant on Count 9; (4)   The sentence imposed upon the Appellant be set aside and in lieu thereof an aggregate sentence be imposed of imprisonment for three (3) years and six (6) months with a non-parole period of one (1) year and nine (9) months. (5)   The sentence commence on 11 August 2016, the non-parole period shall conclude on 10 May 2018 and the head sentence conclude on 10 February 2020.
Catchwords:	CRIMINAL LAW – appeal – conviction – verdicts of guilty and not guilty to different counts – question of inconsistency and unreasonable verdict – issue of unreasonableness must factor in acquittals – appeal allowed in part.
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Banditt v R [2005] HCA 80; (2005) 224 CLR 262 Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 PA v R [2015] NSWCCA 18 R v Hemsley (1988) 36 A Crim R 334 R v Murray (1987) 11 NSWLR 12 R v O’Meagher (1997) 101 A Crim R 196 R v Randall (1991) 53 A Crim R 380 R v Zorad (1979) 2 NSWLR 764 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299
Category:	Principal judgment
Parties:	Glen Paul Darby (Appellant) Regina (Crown)
Representation:	Counsel: T Game SC/L C Hutchison (Appellant) J Pickering SC (Crown)   Solicitors: Nyman Gibson Miralis (Appellant) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2012/332926
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Law Date of Decision: 21 May 2015 Before: Sorby DCJ File Number(s): 2012/332926

Judgment

1. GLEESON JA: I agree with Rothman J.

2. ROTHMAN J: The Appellant, Glen Paul Darby, appeals against conviction for four offences. The Appellant was charged with nine counts, acquitted of five of those nine and convicted of the other four counts.

3. The trial judge granted a Certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 and granted bail, pending the appeal, after sentencing the Appellant to an overall sentence of four years’ imprisonment with a non-parole period of two years dating from 15 May 2015. The Appellant continues on bail.

4. The ground of appeal relates to the alleged inconsistency between the verdicts of guilty, on the one hand, and the acquittals for counts 1 – 4 and 8.

Charges

5. The Appellant is 35 years of age and a mining company executive. The alleged complainant is an employee who worked in the same industry and building as the Appellant, but for a different company. The trial commenced on 21 July 2014 and lasted for just over one week after which the Appellant was convicted by a jury of 11 (one juror having been discharged during the course of the trial).

6. The charges preferred against the Appellant were:

Counts 1, 2, 3, 4, 5, 7 and 8: Sexual Intercourse without Consent, contrary to s 61I of the Crimes Act 1900, for which the maximum penalty is 14 years and for which a standard non-parole period is set of seven (7) years’ imprisonment;

Count 6: Act of Indecency, contrary to s 61N(2) of the Crimes Act 1900, for which the maximum penalty is 18 months’ imprisonment and for which there is no standard non-parole period;

Count 9: Indecent Assault, contrary to s 61L of the Crimes Act 1900, for which the maximum penalty is five (5) years’ imprisonment and for which no standard non-parole period has been prescribed.

7. As earlier stated, the Appellant was acquitted on Counts 1, 2, 3, 4 and 8 and convicted on Counts 5, 6, 7 and 9. An aggregate sentence of imprisonment of four (4) years was imposed, with a non-parole period of two (2) years’ imprisonment. The sentence, as earlier stated, commenced on 15 May 2015 and the non-parole period would have expired on 15 May 2017, but the learned Judge who conducted both the trial and the sentencing hearing granted bail immediately upon sentence, such that the Appellant has served none of the sentence imposed upon him.

Evidence and Nature of Case at Trial

8. Before reciting the evidence and analysing it, it is necessary, in order to understand the issues in the trial and in this appeal, to appreciate that there was no issue at trial that sexual intercourse took place between the Appellant and the complainant and that, in the course of that sexual intercourse, various acts occurred each of which, one way or another, is the subject of a charge. The issue at trial was whether the Crown had negated consent in accordance with the principles established for conduct such as this. Later in these reasons, an analysis of that which is required to be negated by the Crown in order for lack of consent to be proved will be discussed.

9. A summary of the facts can be recited in short form, before the particulars of the evidence are discussed. The Appellant and the complainant knew each other from April 2012 as they both worked in the same office building for different companies in the mining industry.

10. On 25 September 2012, the Appellant and the complainant were at a bar in the central business district (“CBD”) for two and a half hours. When they left the bar at 8.00pm that evening, they were both intoxicated at least to a certain extent. The complainant stated that the appellant made inappropriate remarks and took an inappropriate photo of her while at the bar.

11. The Appellant and the complainant went to their office building to collect their belongings, before intending to go home. The CCTV footage showed them entering the building at 7.59pm, taking the lift to level 19 and walking to the Appellant’s office.

12. The complainant claimed that the Appellant had sex with her without her consent. There were two discrete instances of digital-vaginal penetration and two discrete instances of cunnilingus (Counts 1 – 4), while the complainant was sitting on a table. The Appellant licked and touched the complainant’s breasts, the timing of which is unclear from her evidence. In my view, it was probably during the conduct that gave rise to Counts 1 – 4. I deal with the timing issue later in these reasons. Whatever the timing, the licking and touching gave rise to Count 9.

13. The Appellant then again performed cunnilingus on the complainant (Count 5), while the complainant was kneeling on the ground. The Appellant then masturbated, using the complainant’s hand, until he ejaculated on the floor (Count 6). He then inserted his fingers into the complainant’s vagina (Count 7) and allegedly inserted his penis into her vagina from behind (Count 8).

14. It is appropriate to point out that the verdicts were delivered in two stages. The verdicts of not-guilty on Counts 1, 2 and 8 and the verdicts of guilty on Counts 5, 6, 7 and 9 were returned after approximately one day’s deliberation, at which time the jury were given a Black [1] direction on the remaining Counts 3 and 4, and returned verdicts of not-guilty a few hours later.

    1. Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

Evidence

15. At the time of the incident, the complainant was 24 years of age and was working in a mineral exploration company as a casual junior geologist. As earlier noted, the only issue as to the elements of the offences related to whether the sexual contact was consensual or non-consensual. I have read all of the evidence, but particular regard has been paid to the cross-examination of the complainant. The Crown’s summary of the trial summarises the evidence as it was adduced in a manner that is accurate and fair and it is further summarised in the Appellant’s submissions. To a large extent, the following recitation of the evidence is taken from those summaries. The evidence has been anonymised to some extent and only the most relevant aspects have been recited.

The Complainant’s Evidence

16. The complainant gave evidence over two days in chief and was cross-examined. Her evidence dealt with the circumstances in which she knew the Appellant and it is fair to categorise the relationship, before 25 September 2012, as one that was a friendly, professional relationship, in which there was social contact between the two of them usually in the company of one or more others, including the Appellant’s girlfriend and other professional colleagues. It included invitations by one or the other to join for drinks (again, usually with a third person) and the complainant’s requests for career advice. Contact was made by text, email, phone and in person in the precincts of their offices.

17. On the weekend before Tuesday 25 September 2012, the complainant participated in a strenuous marathon/obstacle course, involving running and jumping. As a result, the complainant struggled to work on the Monday with a sprained ankle and injury to her hip. She was required to have a tetanus shot.

18. The complainant saw the Appellant on the Tuesday afternoon, when he approached her in the common area of the floor in which their offices were situated. He gave her a hug, which, according to the complainant, he had never done on any previous occasion. The hug was witnessed by a mutual colleague. He informed the complainant that he was miserable about some issue and was going for a drink later in the day, suggesting the complainant join him.

19. Just after 5.00pm (between 5.00pm and 5.15pm) the complainant sent him a text message of one word: “Pub?”. The Appellant responded that he was at the bar mentioned earlier in these reasons. [2] The bar was opposite Martin Place and the complainant went to meet him there.

    2. At [10] supra.

20. The complainant called her boyfriend, Andrew, to ask if he wanted to come to the pub with her. He responded that he was in the middle of doing his tax return and suggested that they meet later instead; about 8.00pm.

21. The complainant arrived at the bar about 5.30pm. It is relevant to describe what the complainant was wearing, which was a black suit jacket and skirt, black pantihose, a singlet top, underwear and bra. The complainant was carrying a red backpack bag.

22. At the time that the complainant arrived at the bar, the Appellant was sitting drinking a beer with another woman, who was drinking tea. He was on a couch in the atrium area, outside the main bar. There were tables and round ottoman-style seats in the area.

23. The complainant sat on one of these ottoman-style seats as did the other person with whom the Appellant was drinking. The complainant was next to the Appellant, who was also next to the other person. The other person was also next to the complainant forming an informal triangle. The complainant had a glass of red wine. The third person left 20 – 30 minutes after the complainant arrived.

24. After that, the complainant ordered a standard sized bottle of Peroni beer for herself and for the Appellant and two mini ‘slider’ burgers. She ate one of the burgers and offered the other to the Appellant. He took a bite and then put it back on the plate and made a comment about how it now had his saliva on it and if she were to finish it, it would be like they were kissing. The complainant described her reaction as being a grimace and a pause, but she ate the burger.

25. The conversation between the complainant and the Appellant turned to the reasons that the Appellant was upset, which related to his personal life. During the course of the conversation the Appellant said to the complainant words to the effect that her skirt was quite short to which the complainant replied “it’s really not that short” and pulled the skirt down a little. She also remarked to the Appellant that there were women further down the bar who had much shorter skirts.

26. The complainant’s skirt was approximately knee length (just above the knee) and the comments of the Appellant had made the complainant feel uncomfortable. The Appellant then took a photo of the complainant focusing mostly on her upper thighs and said to the complainant words to the effect that he would send it to his girlfriend unless she, the complainant, had sex with him. The complainant does not remember her response but did remember thinking it was “a really weird” comment by him.

27. The complainant was still drinking a beer when the Appellant suggested that they order cocktails, because there was a special price of two for one. They ordered a sweet, berry-flavoured cocktail each.

28. Once the complainant drank part of her cocktail and became aware that it was strongly alcoholic, her evidence was that she tried to pace herself. The Appellant was speaking softly and the complainant moved on to the couch in order to hear, to which the Appellant commented to the effect that the complainant wanted to be closer to him. This, according to the complainant, made her feel uncomfortable.

29. The complainant remarked to the effect that she needed to use the bathroom. Her evidence was that she wanted to stand up and move away from him. The complainant had difficulties and realised that she was quite intoxicated.

30. The complainant tried to ring her boyfriend, Andrew, but there was no answer and she returned to the table and seats where she had previously been drinking. The Appellant was still sitting on the couch.

31. According to the complainant’s evidence, the Appellant then suggested that they should have sex in the office in the following terms:

“I should cum on your face”.

To which she replied:

“You have a girlfriend. You should have sex with your girlfriend. I am going to Andrew’s”.

32. At that point, the complainant rang Andrew and said to him: “do you want to have sex tonight?”

33. This was at approximately 7.30pm or between 7.30pm and 8.00pm. In the conversation with Andrew, the complainant agreed that the two of them would meet at his place at about 8.00pm.

34. The Appellant then ordered two more cocktails and the complainant had some part of one of the cocktails. The complainant does not remember if the Appellant finished his or the cocktail that she had started. She was anxious to leave and see Andrew and suggested that they both get a taxi to the inner west. They walked back to the office.

35. The complainant said that the Appellant said he wanted to get his briefcase and she, the complainant, wanted to get her hard drive. It was quite dark and she followed him while they were walking. There is CCTV footage recording the times when the complainant entered and left the bar, the latter occurring at approximately 8.00pm. CCTV footage from the work premises showed both the complainant and the Appellant arriving on the floor of the premises at an adjusted time of about 8.00pm.

36. The Appellant paid for the bar account and on arriving at the workplace used his swipe card to enter the building. The Appellant opened his office and went inside.

37. Apparently, the complainant waited, initially, in the reception area and entered the Appellant’s office upon invitation from him. The CCTV footage available from the building does not show the reception area or the Appellant’s office.

38. The Appellant told the complainant to sit on the desk and she did. Her legs were hanging over the edge. The Appellant was initially sitting in a chair, then approached her and put his hands up her skirt. He grabbed her stockings and underwear and pulled them down in one motion.

39. According to the complainant she said to him:

“Get off me. I don’t want it.”

The Appellant put his head between her legs and licked and sucked her vagina. She said:

“Get off me, get off me. I don’t want it, I don’t want it.”

40. According to the complainant’s evidence, she then put her hands on his head and tried to push his head away. He had his fingers in her vagina, moving in and out.

41. This conduct continued for some short time. His hands were on her thighs and she couldn’t move and the complainant felt discomfort from the digital penetration that was occurring.

42. The Appellant fondled and sucked her nipple, after taking her breasts out of her bra. The complainant got off the desk and tried to put her stockings and underwear back on. Because of her drunkenness, she was on the floor trying to do this. The Appellant said words to the effect that the complainant was more attractive than she thought she was.

43. The complainant recalled being on her back and the Appellant, once more, was “sucking her vagina”. His fingers were once more penetrating and moving in and out. She said:

“Get off me. I don’t want it.”

44. She was worried he would use his penis as he had pulled his pants down. The complainant described the Appellant’s penis as short and erect.

45. She said:

“If you do that, it will be rape”.

With that statement, the Appellant moved away a bit.

46. The Appellant stopped the complainant from getting to her feet. He was masturbating. She was worried he would ejaculate on her. She pushed his penis away. He put his hand over hers and it went up and down his penis.

47. The complainant believed that, if the Appellant were to ejaculate, his behaviour would stop. So she did move her hand up and down and the appellant ejaculated on the floor. The complainant alleges she was “really disgusted” and thought that the event was over.

48. The complainant thought that she could then leave, but the Appellant again inserted his fingers in her vagina several times. She also considered that she felt his penis in her vagina and yelled:

“I said I don’t want it”.

To which the Appellant replied: “I didn’t try and rape you”.

At that stage, the complainant was facing the desk and the Appellant was behind her.

49. At one stage she recalls the Appellant kissing her and she thought she was sitting on his lap at the time, but everything was “very much in a daze”. The complainant recalled some music, which she thought may have been from a laptop and she did not think that the Appellant ejaculated inside her.

50. At one stage, after these events, the Appellant said to her:

“Why are you so upset? I have just been eating you out for two hours.”

51. The complainant thought that she was in the office between 8.00pm and 10.00pm that night. She did not scream because she understood there was no one else on level 19 and she did not recall getting dressed, although obviously, she did. She went to the bathroom urinated, and washed her hands.

52. The CCTV, from the level at which these events were said to have occurred, recorded the complainant and the Appellant leaving the Appellant’s office at about 9.30pm; the complainant moving towards the female toilets and the Appellant moving towards what is thought to be the male toilets. The CCTV footage shows the complainant returning to outside the Appellant’s office, from the toilets, where the Appellant was by then waiting.

53. At 9.30pm on that evening, they are depicted embracing briefly and both then walked away from the camera towards the lift. They were both depicted on another CCTV camera emerging from the lift foyer on the ground floor at 9.33pm and leaving the building.

54. The complainant said that, outside the building, she kept her distance from the Appellant and walked to a taxi rank, in order that she could go and see Andrew, as previously arranged. A security guard was outside the glass doors in front of the building. She did not approach the security guard because she just wanted to get away. The complainant testified that she felt confused and distressed.

55. The Appellant had suggested that they share a taxi, but the complainant did not share and hired a taxi by herself. Apparently, according to the complainant, the Appellant also suggested another drink to which she did not reply and departed in the taxi.

51. When she arrived at Andrew’s house, it was about 10.00pm and (according to Andrew) she looked distressed or unwell. The complainant said to Andrew:

“I think I have just been raped.”

57. Andrew suggested that they call the Rape Crisis Centre but the complainant wanted to go to sleep. She believed she slept fully clothed.

58. The next morning the complainant could not get through to the Rape Crisis Centre. Andrew’s mother took her to the Women’s Health Centre at Leichardt, which was closed. They then went to the Leichardt Medical Centre and saw a doctor, who referred her to the Royal Prince Alfred Hospital (“RPA”).

59. She was examined at RPA and tests were done at which time she also spoke to the police. She had not called the police when she arrived at Andrew’s house the night before because she understood the best approach was not to shower and to see a doctor. When she spoke to police she gave them her mobile telephone.

60. Some more detail as to the sexual contact between the Appellant and the complainant was given at a later time and evidence was adduced of the two emails that the complainant had sent to the Appellant prior to the date of the incident, 31 August 2012 (Exhibit 5) and 3 September 2012 (Exhibit 6).

61. Also tendered was a list of SMS messages (Exhibit 7). One of the texts (page 10 of Exhibit 7) was the text sent to Andrew in the context of having sex with him that night.

62. Another text, of which the complainant had no recollection, was from the Appellant, later in the night of the incident, with the following message:

“I stink. You OK?”

The complainant did recall receiving an even later text from the Appellant in the following terms: “Let me know if you made it OK.”

63. When the complainant was outside RPA, she received a call from the Appellant, but did not answer the phone. A little later, she received a call from an unknown number, which she answered, heard the Appellant’s voice and hung up.

64. There was a subsequent text message from the Appellant to the complainant in the following terms: “Hey, cut out. I am away all week …”. The complainant never returned the text message or returned the Appellant’s phone call.

65. The complainant was cross-examined over two days. In cross-examination, the complainant denied that she had any sexual interest in the Appellant and accepted that she had some scepticism about the work opportunities advised by the Appellant as part of the response to questions concerning career advice.

66. The complainant agreed that she could have left the bar at any time during the evening. When the comments relating to such matters as the saliva on her burger were put to the complainant, she testified that comments of that kind were not “uncommon” in the industry in which she worked.

67. In cross-examination, the complainant commented that the statement about her skirt being very short made her feel “very uncomfortable” at which time she pulled her skirt down. The complainant accepted that she could have left the bar at that stage, but did not.

68. It was put to the Appellant that her statements about the burger were incorrect in detail and that the Appellant had never said to her that her skirt was short but had simply complemented her on her dress. The complainant disagreed with each proposition.

69. Asked why she did not leave at the point in time that she went to the bathroom, given that she felt uncomfortable at a number of the comments, the complainant said that she had been unable to contact Andrew.

70. The statement to Andrew “do you want to have sex tonight?” was said in the presence of the Appellant, so that the Appellant would know with whom the complainant wanted to have sex.

71. The complainant did accept that earlier in the evening she had told the Appellant as to Andrew that, “He is technically not my boyfriend. I am just dating him.”

72. The complainant was cross-examined as to the statements said to have been made by the Appellant and why their inappropriateness did not make the complainant consider that it was time for her to leave. The complainant answered that because the Appellant had paid for the drinks, she thought that she, the complainant, should pay for the taxi.

73. In cross-examination, it was also put to the complainant that she said to the Appellant: “I am going to have sex tonight”, which she denied. It was also put to the complainant that she said that the Appellant’s girlfriend was nice and that she, the complainant, “would sleep with your girlfriend and you”. Again, the complainant denied this suggestion.

74. It was then put to her that the Appellant never said to her: “I want to cum on your face”, but the complainant insisted that it had been said by the Appellant. This question and suggestion was put, in circumstances where it had previously been asked of the complainant by counsel whether the complainant had thought it was time to leave when the Appellant used those words. The foregoing is not suggested to be inconsistent questioning or in any way a breach of any rule of ethics or fairness.

75. The complainant was cross-examined about her proximity to the Appellant when they were sitting together on the couch in the bar, about the timing of his, the Appellant’s, inappropriate comments, and asked why, ultimately, she did not retrieve her hard drive, which was the ostensible reason for her return to the office.

76. The complainant’s response to the last-mentioned question was that she had realised at the office that she was quite drunk and, since she was going to Andrew’s house, she would not be able to study in any event.

77. At first, the complainant denied that she and the Appellant had kissed, but, she accepted, that at one point, when he was kissing her, she did kiss him back, which she could not now explain. She thought that this occurred when she was on his lap. The complainant accepted that she was in the office for about one and a half hours. The complainant denied that she had consensual sex.

78. The proceedings on the first day of cross-examination adjourned early, because the complainant had become upset. On the second day of cross-examination, the complainant was asked again about the photographs from the CCTV and the bar during which time she sat in a position, next to the Appellant, with the Appellant’s arm around her. She could not explain why she sat like that.

79. During the cross-examination, the CCTV footage from the bar was played and, after agreeing that the footage depicted the complainant and the Appellant, the complainant accepted that the Appellant’s arm was behind her and her head was next to his. The complainant maintained she was not being intimate and that they were having a conversation.

80. After viewing the footage at 19.57 hours, the complainant stated: “my head looks like it’s quite near his shoulder.” She did not, in the evidence, remember if she put her head on his shoulder. Notwithstanding her acceptance that the Appellant put his left arm around her at the bar, the complainant denied cuddling up to him or having any sexual interest in him.

81. It was put to the complainant, which proposition the complainant denied, that there was consensual oral sex performed on her by the Appellant, and she on him, in the “69” position. The complainant agreed that they were in that position but said she did not perform oral sex on the Appellant. She also did not accept that when they were standing, they had mutually masturbated one another.

82. The complainant did agree that the CCTV footage from the Appellant’s workplace disclosed that some 15 minutes after their arrival at the office, the Appellant went and closed the office door. It was put to her that at no stage was their penile-vaginal intercourse. The complainant disagreed with that proposition and disagreed that the text commencing with the words “I stink” made her upset, and reiterated that she did not see the text and, therefore, could not have been upset by it.

83. It was suggested to the complainant that, given the level of detail that she could recall about the inside of the Appellant’s office, the complainant was not as drunk as she would have people believe. The complainant denied that suggestion.

84. Otherwise, the complainant could not explain why she returned to the Appellant’s office, after going to the toilet on that level and the complainant agreed that she did not tell Andrew what had happened immediately when she arrived.

85. When asked about her statement to Andrew, “I think I just got raped”, the complainant explained that she did not know if the behaviour she had experienced from the Appellant amounted to rape because “He only put it in me three times”.

86. The complainant agreed that she felt that the Appellant had taken advantage of her while her inhibitions were lowered by alcohol and could not recall if, on the following morning, she had said “I don’t know if it was rape”. The complainant denied that she had engaged in consensual sex that she later regretted.

Other Witnesses

87. Evidence was adduced from Dr Alanah Houston who examined the complainant at 11.00am on 26 September 2012. Dr Houston took contemporaneous notes of that which the complainant told her. Those notes are, very much in summary form, consistent with the evidence of the complainant.

88. Dr Houston administered a breath test for alcohol with zero result. Dr Houston examined the complainant, noted some grazes, which were from the obstacle course undertaken the weekend before the incident in question.

89. Dr Houston noted tenderness at the urethra, which she said was unusual and indicated “some form of blunt trauma”. Dr Houston also noted an abrasion at the posterior fourchette (the entrance to the vagina), which was “highly supportive of an allegation of vaginal penetration”. That penetration was consistent with either penile or digital penetration.

90. Various swabs were taken for testing. Dr Houston agreed that the observations as to tenderness and abrasion could not differentiate between consensual or non-consensual sex.

91. The complainant’s boyfriend, Andrew, gave evidence confirming the contact between the complainant and him during the course of the evening of 25 September 2012 and the relationship that had existed between them since about February or March 2012.

92. Apart from confirming the conversations between the complainant and Andrew earlier in the evening, he also confirmed a number of ancillary issues such as the existence of the portable hard drive from which the complainant studied.

93. Andrew expressed the opinion that, when he spoke to the complainant earlier in the evening, she sounded “noticeably intoxicated”. From the telephone conversations between them, Andrew expected her to arrive between 8.30pm and 9.00pm. At 10.00pm, he texted her because she had not appeared, but she arrived within a minute or so of the text being sent.

94. On arrival, the complainant was looking downwards, her shoulders were hunched over and she made no eye contact. The complainant looked very dejected. The complainant spoke slowly and was “less noticeably intoxicated”.

95. After Andrew organised a meal for the complainant, the complainant was in Andrew’s room and told him: “I think I was raped”. She told him that she had gone to her office and “that guy, he had got it in me for a bit, and I pushed him away”.

96. Andrew asked the complainant whether she had consented and the complainant replied: “I said I didn’t want to have sex. I didn’t want to.” The complainant was, at the time, not making eye contact and was looking into her hands.

97. Andrew suggested contacting the Rape Crisis Centre. Andrew recalled that in the morning, the complainant said to him: “I don’t know if it was rape”.

98. At the time, Andrew was a law student. He retrieved a text book and read the definition of sexual assault to the complainant and also the definition of consent. Andrew’s mother drove the complainant to the Rape Crisis Centre. At that time, the complainant was very withdrawn and not making eye contact.

99. In Andrew’s experience, the complainant usually drank very little.

100. In cross-examination, Andrew agreed that he had heard the man in the background on the telephone say the same thing as the complainant and he had subsequently heard the complainant giggle. He agreed that he had earlier described the man in the background as “parroting her words”.

101. Andrew agreed that, after the earlier call, he had thought the complainant sounded “in quite a gregarious, happy mood”. By 10.00pm, some two hours after the text, he was worried because she had sounded drunk earlier.

102. Andrew estimated that it was at least 20 minutes before the complainant told him about the incident. Before then it was obvious to Andrew that the complainant was not right and Andrew was waiting for the complainant to tell him what the problem was. He agreed that the account he had given of what she had said was “a bit vague”, being a reference to the complainant saying: “that guy came up to me. He got it in me for a bit and then I pushed him away.”

103. Andrew agreed that during the evening he had told the complainant about the effect of intoxication and that it was more difficult to consent, if a person were intoxicated, and that consent needed to be “freely forthcoming”. Andrew suggested to the complainant, after hearing what she had said, words to the following effect: “it sounds like you have been sexually assaulted”, to which the complainant nodded. That last conversation occurred the morning after the incident on 25 September 2012.

104. Evidence was also adduced from the Office Manager of the offices in which the incident occurred, relating to the placement of CCTV cameras and the layout of the offices. Evidence was also adduced from Senior Constable Deanna Carapott, who had attended the office premises, declared it a crime scene and removed staff that were present. The officer collected the CCTV footage, some of which was blurry for a reason that is presently irrelevant.

105. Evidence was adduced from a Crime Scene Officer, who took photographs and a swab of a stain on the floor in one of the offices. Another police officer, Detective Senior Constable Sarah Thomsen spoke to the complainant at RPA on 26 September 2012 and recorded the complainant in terms similar to, but in some areas inconsistent with, the detail that had been given to Dr Houston, particularly as to whether the complainant had returned to Andrew’s house before receiving confirmation that the Appellant had gone to a bar and the location of the bar.

106. Detective Senior Constable Thomsen took the complainant’s phone and noted the record of missed calls and text messages from the Appellant. The Officer also took the complainant’s blue notebook and a taxi receipt.

107. Evidence was adduced from Sergeant Alison Acock, who was the officer in charge of the investigation. Sergeant Acock also spoke to the complainant at RPA. During that conversation the complainant identified the Appellant and where he worked and gave an account of the incident that is broadly similar to the account given in the complainant’s evidence. Each account is in evidence and able easily to be compared. I am not, in the earlier comment, discounting the importance of any inconsistency or variation.

108. Sergeant Acock specifically asked the complainant whether the Appellant “put his penis into your vagina and penetrate?” To which she replied “Yes, he did”.

109. Sergeant Acock gave other evidence that, in the circumstances of the issues in this appeal, is not particularly relevant.

110. On 28 September 2012, Sergeant Acock took a statement from the complainant and also extracted data from her phone, relevant to the incident. Receipts were obtained from the bar in question and CCTV footage obtained from a variety of sources.

111. On 4 October 2012, Sergeant Acock completed the complainant’s statement. She called the Appellant on 25 October 2012 and he attended on that day. Sergeant Acock seized his phone and asked the Appellant to participate in an interview, which the Appellant declined on legal advice. A buccal swab was taken from the Appellant.

112. Analytical evidence was given as to DNA testing and matches.

113. The low vaginal smear swab did not reveal the presence of semen. An additional test (being the Y chromosome profiler) showed a match with the Appellant, but was consistent with all males on his paternal side and with 1 in every 150 unrelated males. The DNA match would be from a source other than semen and could be either skin or saliva. It could have come from a finger, a penis, or another source.

114. The next swab was a vulval smear. Again, no semen was detected and no other results were obtained. The third swab was from the right breast of the complainant. DNA testing revealed DNA consistent with that of the Appellant. It was likely that the DNA had come from a rich source such as saliva, blood or semen.

115. The next swab was from the left breast of the complainant and produced the same results as the swab from the right breast. The swab from the complainant’s underpants revealed DNA consistent with the complainant.

116. The swab from the carpet was not successful. There were a number of explanations for this. First, there may never have been DNA there at all. Secondly, any DNA may have been destroyed as a result of the treatment to the carpet after the DNA had been deposited.

117. The analyst agreed that no semen had been identified from any of the swabs and the Y profiler had matched 11 from a possible 16 sites. The samples were consistent with the DNA coming from a tongue, a finger or a penis.

118. Evidence was also adduced from Detective Senior Constable Lawson and further evidence from Sergeant Acock. It is unnecessary to summarise that evidence.

119. The Crown case closed. There was no case for the Appellant.

120. In the course of summing-up, the learned trial judge noted that the Crown case depended on the account of the complainant as to what had occurred on the night in question.

121. For obvious reasons, this is commonly the case in alleged sexual misconduct, which his Honour pointed out to the jury and then directed them in the following terms:

“The Crown case essentially depends on the evidence of the complainant. It is therefore important that you carefully scrutinise and examine her version of events and treat it with considerable caution in determining whether she has given you a reliable account. In doing this you remember her evidence and her demeanour. You also consider her evidence and inconsistencies in her version of accounts ….

What you make of the evidence members of the jury is a matter for you. If after carefully considering the question of her reliability, if she was giving you essentially truthful version of events, you may rely on her in determining the question of whether the Crown has proved its case beyond reasonable doubt on each charge. On the other hand, if you are not persuaded that she was giving you a reliable version of events, then you would not be satisfied of the guilt of the accused beyond reasonable doubt and therefore he must be acquitted.

Members of the jury, earlier in the summing-up, I told you that you must consider each charge on the Indictment separately. Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not-guilty on other counts, if there is a logical reason for that outcome. If you were to find the accused not-guilty of any count, particularly if it is because you had doubts about the reliability of the complainant, you will have to consider how that conclusion affected your consideration of the remaining counts.” [3]

There are other similar comments in other parts of the Summing Up. [4]

3. Summing Up at pp. 36 – 37.

4. (i) On the question of dealing with each count separately, see also, the directions at pp. 7.9; 8.4;

122. That passage of the summing-up occurred on 30 July 2014. On 1 August 2014, the jury advised that they were unable to reach a unanimous decision on two counts, but had reached agreement on seven. In the absence of the jury, and before taking a verdict on the seven counts, his Honour observed:

“It seems to me that the Crown case – the accused’s case was more or less all or nothing because of the circumstances of the events …”

123. Shortly thereafter the jury returned the verdicts of Not Guilty regarding Counts 1, 2 and 8 and verdicts of Guilty regarding Counts 5, 6, 7 and 9. A Black [5] direction was given and the jury were directed to continue deliberating and later that day verdicts of Not Guilty were returned regarding Counts 3 and 4.

     5. Black v The Queen [1993] HCA 71; (1993) 179 CLR 44.

Consent and Other Issues Relating to Elements of the Offences

124. Before dealing with consent, being the major issue at the trial, it is necessary to explain the breadth of the term sexual intercourse. Sexual intercourse for the purposes of the Crimes Act includes any sexual connection by the accused occasioned by the penetration to any extent of the genitalia of a female or the anus of any person by any part of the body of the accused or any object manipulated by the accused (except for proper medical purposes); sexual connection occasioned by the introduction of any part of the penis into the mouth of another person; cunnilingus; or the continuation of sexual intercourse otherwise defined.

125. As a consequence, cunnilingus does not require proof of penetration and consists of licking or sucking any part of the genitalia. [6] Further, the definition of sexual intercourse does not require an element of sexual gratification by the accused. The foregoing definitions apply to any sexual assault occurring after 14 July 1991.

     6. R v Randall (1991) 53 A Crim R 380.

126. The complainant’s “consent” is a matter with which the legislature deals in s 61HA of the Crimes Act and that provision also deals with circumstances where the accused knows that the other person does not consent to the sexual intercourse. They include: where the accused actually knows that the complainant does not consent; [7] where the accused is reckless as to whether the complainant consents; [8] and where the accused has no reasonable grounds for believing that the complainant consents. [9]

     7. s 61HA(3)(a) of the Crimes Act.

     8. s 61HA(3)(b) of the Crimes Act.

     9. s 61HA(3)(c) of the Crimes Act.

127. Further, the provisions of s 61HA prescribe circumstances where a complainant does not consent to sexual intercourse, which, relevantly, include where the person has sexual intercourse “while substantially intoxicated by alcohol or any drug”. [10]

     10. s 61HA(6)(a) of the Crimes Act.

128. Even though one of the charges on which the jury returned a verdict of guilty was a contravention of s 61N of the Crimes Act, which does not expressly require a lack of consent, in circumstances where a person is over the age of 16 years (as was the complainant in these proceedings), the Crown is required to prove a lack of consent in order to prove that the conduct is an “act of indecency”. That provision also applies to the question of whether an assault has been committed in such circumstances.

129. Thus the lack of consent was an essential element which the Crown was required to prove beyond reasonable doubt in relation to each of the charges preferred against the Appellant.

130. Further, the Crown was required to prove beyond reasonable doubt not only the complainant’s lack of consent, but also the Appellant’s knowledge that the complainant was not consenting, which, for the purposes of the law, included a reckless disregard as to whether the complainant was consenting or the lack of any reasonable grounds for believing that the complainant was consenting.

131. Thus, if the Crown proved beyond reasonable doubt that the Appellant knew that the complainant was not consenting, the Crown would have satisfied this aspect. Also, if the Crown proved, directly or indirectly, that the Appellant engaged in the conduct alleged, not caring whether the complainant consented or not, in circumstances where the complainant did not consent, that too would amount to knowledge for the purpose of the second aspect of disproving consent. [11]

     11. R v Murray (1987) 11 NSWLR 12.

132. In the latter foregoing circumstance, it is sufficient for the Crown to prove, beyond reasonable doubt, that the Appellant is aware of the possibility that the complainant might not be consenting and proceeds regardless. [12]

     12. R v Zorad (1979) 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334.

133. It is not necessary for the Crown to prove that the Appellant consciously turned his mind to the possibility of non-consent and proceeded regardless. If the Appellant had failed to turn his mind, at all, to the question of consent (treating it as irrelevant) this would amount either to knowledge or recklessness. [13]

     13. Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262.

134. However, recklessness, like knowledge, is not determined by an objective standard but an examination of the mind of an accused. [14] Notwithstanding the judgment in O’Meagher, to which reference has just been made, that decision of the Court of Criminal Appeal must be qualified by the terms of s 61HA(3)(c) of the Crimes Act, explained above, which were promulgated after the date of the judgment in O’Meagher.

     14. R v O’Meagher (1997) 101 A Crim R 196.

135. The question of whether, as a matter of fact, the complainant consented is only half of the issue that the Crown must negate. The other half is that the Crown must, as earlier stated, prove, to the requisite standard, that the Appellant knew that the complainant was not consenting, as that has been explained above in dealing with the terms of s 61HA of the Crimes Act.

Inconsistency of Verdict

136. Traditionally, an argument based upon inconsistent verdicts was based upon one or both of two quite different propositions. The first proposition relates to technical inconsistencies, in which two verdicts cannot, as a matter of law and logic stand together. One obvious example would be a trial of two co-accused, one charged with a principal offence and the other with accessory after the fact, in which trial the evidence was the same for each co-accused, and the principal was acquitted and the accessory after the fact convicted. Such a conviction would be “perverse” and the two verdicts could not, in law, stand together. This is because the guilt of the principal is an element that the Crown must prove to prove the guilt of the accessory. In those circumstances, an appellate court would be required to set aside the verdict of guilty.

137. The other traditional kind of inconsistency relates to factual inconsistency, which depends upon logic and reasonableness. An example would be where an accused was charged with murder and the trial depended on only one issue, namely whether the conduct of the accused caused death, and the jury returned a verdict of not guilty to murder but guilty of manslaughter.

138. Such a result would, given the factual issue at trial, evidence a compromise in the jury rather than a situation in which the jury turned its mind to the legal issues. Of course, there are other reasons, other than compromise, as to why a jury might reach a verdict of that kind. The High Court, in MacKenzie v The Queen [15] said:

“Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the ‘constitutional’ tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.”[16]

15. [1996] HCA 35; (1996) 190 CLR 348.

16. Ibid, joint judgment of Gaudron, Gummow and Kirby JJ at 365.

139. Later in MacKenzie,[17] the joint judgment listed, in numbered paragraphs, a number of general propositions from which I shall reiterate two:

     17. Ibid, at 366, 367 and 368.

“3.    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He 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.’

4.    Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’

We agree with these practical and sensible remarks.” [Citations omitted.]

140. As the High Court commented, there will, notwithstanding the foregoing, remain a residue of cases where the different verdicts returned by a jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise in the performance of the jury’s duty. The High Court in MacKenzie made it clear that intervention to set aside a conviction will occur only when the inconsistency in verdict “rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice”. [18]

     18. See also the judgment of McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at [116] – [127].

141. In Osland v The Queen, McHugh J, as part of the broader passage to which reference has already been made, said:

“[120]    When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory.

[123]    The jury were never directed that they could not convict Mrs Osland unless the Crown had negatived David Albion’s defences. With great respect, setting aside a jury’s verdict on the ground of inconsistency when the verdict is in accordance with the evidence and directions is, so far as I am aware, without precedent. There can be no ‘flaw in reasoning’ by the jury when they do what the judge’s directions require or permit them to do.

[124] If the judge’s directions permit a jury to reach its conclusions by a process which is contrary to law, it is the directions which are wrong, not the jury’s process of reasoning. If the judge’s directions or failure to direct are wrong, the question then is whether that fact requires the conviction to be set aside. That question raises issues as to how the case was conducted by counsel for the accused and whether at the trial the judge was asked to give or withdraw the relevant direction. It raises questions as to whether the direction or failure to direct was in the circumstances a legal error and, if so, whether it gave rise to a miscarriage of justice in the circumstances of the case. Their Honours’ approach necessarily avoids determining these important issues. It permits the conviction to be set aside by reference to an abstract principle of law without considering whether, having regard to the conduct of the case, it was applicable and whether the failure to direct the jury in accordance with that principle constituted a miscarriage of justice. This process is surely contrary to s 568 of the Crimes Act (Vic) which provides:

‘[T]he Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’” [19]

19. In that regard see also Kirby J at [155(1)] and [174] and Callinan J at [257], each agreeing with McHugh J.

142. Notwithstanding the strictness with which inconsistency of verdict has traditionally been applied, the Court must take account of the authorities dealing with unreasonable verdicts. As has been made clear, on a number of occasions, the question for this Court, where it is alleged that the verdict is unreasonable or cannot be supported by the evidence, is whether the Court thinks that, upon an analysis of the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty. [20]

     20. M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.

143. In MFA v The Queen,[21] the plurality[22] said:

“[25]    Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as ‘unsafe or unsatisfactory’, or ‘unjust or unsafe’, or ‘dangerous or unsafe’ to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

‘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.’

[26]    The test, as formulated in M, should not be confused with the question whether a trial judge ought to have directed a verdict of not guilty. This is made clear by the opening words of the above passage. The difference between the function of an appellate court in reviewing the totality of the evidence at a trial in order to determine whether a verdict of guilty was unreasonable, and the function of a trial judge in considering whether as a matter of law there is evidence on which an accused could be convicted, was explained in R v R, a decision which was approved by this Court in Doney v The Queen.” [Citations omitted.]

21. [2002] HCA 53; (2002) 213 CLR 606.

22. Gleeson CJ, Hayne and Callinan JJ at [25].

144. Further, the other plurality judgment [23] said:

     23. McHugh, Gummow and Kirby JJ, at [55] – [57].

“[55]    Nevertheless, in M, the majority of this Court favoured what might be termed a ‘broader’ test for unreasonableness or unsupportability of a verdict. Instead of asking whether the jury ‘must’ or were ‘bound to’ have a reasonable doubt about the accused's guilt, the majority posed the question whether it was ‘open to the jury’ to be satisfied of the accused’s guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict ‘upon the whole of the evidence’.

[56]    The majority in M pointed out that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’. In such a case of doubt, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred:

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’

[57]    The foregoing difference of opinion concerning the test to be applied was brought to a head in M because of the criticism voiced by McHugh J in that case to the effect that the adoption of the formula whether a verdict was ‘open to the jury’ had the potential to constitute ‘an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial’. However in Jones, when this Court returned to the question of the applicable test, McHugh J participated in the joint reasons that said:

‘[T]he test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.’”

145. There has been some discussion of the effect of the test for an unreasonable verdict on the determination of the issues that arise where the argument as to inconsistency of verdict is raised. It seems, while it is unnecessary to decide the question finally or at all, that the difference between the Queensland Court of Appeal and the Victorian Court of Appeal as to the ability to use a jury’s inability to reach a verdict fundamentally concerns the effect it may have on the unreasonableness of the verdict otherwise reached. [24]

     24. See the discussion in PA v R [2015] NSWCCA 18.

146. This Court, in TK v R [25] said:

“[133]    Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged. That this possibility may appropriately be taken into account was reaffirmed as recently as 2002, in MFA. Another possible explanation is compromise amongst a divided jury: see R v Crisologo (1997) 99 A Crim R 178. An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts.

[134]    Where the correct explanation is compromise, the accused person has received the benefit of an acquittal or acquittals to which he or she is not entitled. That is because a jury acting in accordance with its duty ought, if it be the case, to declare its inability to reach a unanimous (or, since May 2006, an appropriate majority) verdict. It is then a question for the Director of Public Prosecutions whether the accused person is to be tried again.

[135]    Mackenzie, Jones and Norris all appear to have proceeded upon the basis that, absent the acquittals, the evidence adduced was sufficient, and was not relevantly tainted, to support the convictions. I do not mean to suggest that Jones creates a separate entity of unreasonable verdict: that is expressly contradicted by MFA. It is also clearly contradicted by the last paragraph in the joint judgment in Jones itself. But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open ‘upon the whole of the evidence’. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).

[136]    In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: see, for example, Mackenzie (at 367); R v Landsell (NSWCCA, unreported, 22 May 1995 per Gleeson CJ). It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view.”

25. [2009] NSWCCA 151; (2009) 74 NSWLR 299 (per Simpson J, with whom McClellan CJ at CL and Latham J agreed).

147. Thus, when inconsistency of verdict is raised and the Court is required to deal with the question of whether the guilty verdicts are reasonable or unreasonable, the Court must not only determine whether it has a reasonable doubt, not explained by the jury’s advantage in seeing and hearing the evidence, but must also factor in the circumstance that the jury acquitted on one or some counts and whatever (if anything) can be discerned as the explanation for that verdict, including what insight may be gained into the jury’s thinking and reasoning. So much was also made clear in MFA. [26] Where the basis for the jury’s acquittal is doubt about the complainant’s truthfulness, then that must affect all the verdicts. [27]

     26. [2002] HCA 53; (2002) 213 CLR 606 (per Gleeson CJ, Hayne J and Callinan J) at [34]).

     27. Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439.

148. During the course of submissions before the Court, counsel for the Appellant suggested that inconsistency of verdict was no longer the test. Rather the test was unreasonableness of verdict, given the other verdicts reached. I am not persuaded that this factor is not additional to, rather than in place of, the traditional inconsistency of verdict arguments.

149. Thus, in my view, the Court must still overturn a verdict in circumstances that would have arisen in the traditional inconsistency arguments, but must also overturn a verdict where the result of other charges before the jury, when factored into an analysis of the evidence, renders the guilt of the accused open to reasonable doubt.

150. As a consequence of the foregoing, inconsistency of verdicts will not always be determined by what was open to the jury upon the whole of the evidence. Even if one were to factor in the requirement to be satisfied beyond reasonable doubt, there may be an inconsistency of verdicts. Even when the whole of the evidence would allow a finding of guilt, the verdicts otherwise reached, when factored into the equation, may have the effect that even though it could be open to a jury upon the whole of the evidence to find guilt beyond reasonable doubt of a particular offence, it is not open in light of the view taken by the jury in relation to the other charges.

151. Thus, in those circumstances, the Court is required not only to determine whether there is or should have been a reasonable doubt on the whole of the evidence, the Court must also determine whether there is a rational distinction that could have been made between the guilty verdicts, on the one hand, and those results that are said to be inconsistent, on the other. Either one of those questions decided in favour of the Appellant (or applicant for leave to appeal) in an appeal, will result in the setting aside of the guilty verdicts. This is so because the inconsistency in the verdicts demonstrates that “no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts”. [28]

     28. Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 (per McHugh J at [120]).

Submissions of the Appellant

152. The Appellant submits that, in the trial, the prosecution relied upon an acceptance of the evidence of the complainant to prove each count on the indictment. The complainant’s version was that the Appellant sexually assaulted her in his office after they had returned from the bar. The events took place within a confined period during which there were no witnesses, for which there is no supporting forensic evidence as to non-consent and there are no admissions made by the Appellant (with the possible exception of “I stink” in the text message from the Appellant to the complainant).

153. In short the Appellant submits that there is no logical way of differentiating between the verdicts of acquittal and verdicts of guilty, particularly as the Crown case was one of continuous conduct. The Appellant submits that the only explanation for the different verdicts was that the jury had doubts about the complainant’s veracity. Those doubts, the Appellant submits, were reasonable. The submission recites the evidence upon which the Appellant relies to support that the doubt was reasonable.

154. The Appellant further submits that the conduct involved in Counts 1 – 4 , for each of which the Appellant was acquitted, were the same as the conduct involved in Counts 5 and 7 of which the Appellant was convicted. Further the acquittal of the Appellant on Count 8 is inconsistent with the guilty verdict on Counts 5, 6 and 7 and the guilty verdict on Count 9 is inconsistent with the acquittal on Counts 1 – 4.

Consideration

155. It is necessary to reiterate that there is no issue in these proceedings as to the sexual contact between the Appellant and the complainant. As earlier stated, the relationship between the Appellant and the complainant, prior to the evening of 25 September 2012, was a friendly, professional relationship involving social contact. Earlier it has been noted that the Appellant hugged the complainant for the first time in the afternoon of 25 September 2012. This occurred in the hallway of the building.

156. The complainant was the only witness who gave evidence of the sexual contact and her lack of consent. The complainant was also the only witness who gave evidence of the conversations between her and the Appellant. As a consequence, and given that the absence of consent is an essential element for the proof of the charges preferred, it was necessary for the jury to believe, in relation to any conduct that gave rise to an offence, that the complainant was being truthful and reliable and to believe it beyond reasonable doubt.

157. If the jury were of the view that the complainant was being untruthful, as to the lack of consent in relation to any particular conduct, they could not have found guilt for the charge relating to that conduct. More importantly, once the jury had found untruthfulness in relation to consent as to any of the conduct, it would necessarily have raised a reasonable doubt upon which it would be almost impossible to find guilt on any of the charges, given that it was one course of conduct that was alleged. The trial judge directed on these issues and no complaint is made of the directions.

158. Nevertheless, the jury found guilt on some charges and acquitted on others. Is there a rational explanation? Further, even if there were a rational explanation, is there a reasonable doubt as to guilt?

159. It is necessary to refer back to the evidence of the complainant and in particular the cross examination. For my own part, I do not disbelieve the complainant. There is nothing in the evidence of the complainant, and in particular the cross examination, that raises a reasonable doubt as to her truthfulness.

160. As a consequence, there is no reasonable doubt that the complainant did not consent to the sexual conduct that occurred. However, that statement is only one part of the elements that the Crown was required to prove beyond reasonable doubt.

161. Notwithstanding the statements by the complainant (that the kind of comments made by the Appellant during the drinking session at the bar were not uncommon in the industry) and despite the view I hold that the complainant did not consent and was not consenting at any stage during the sexual conduct, the Crown, in my view has not proved beyond reasonable doubt that the Appellant did not perceive initially that the complainant was a willing participant in sexual conduct.

162. Given the directions by the trial judge, the jury took seriously the direction that they were required to find that the Crown had proved, beyond reasonable doubt, not only a lack of consent by the complainant, but also an appreciation by the Appellant that there was a lack of consent or the absence of a reasonable basis upon which consent could be inferred. Further, each charge was, according to the directions, required to be considered separately. Those directions were correct.

163. In my view, the conduct at the bar, in particular what was alleged in cross-examination to be the placing by the complainant of her head on the Appellant’s shoulder and the placement of her body within his arm, was a reasonable basis upon which the Appellant may have come to the view that the complainant was open to the suggestion of sexual contact.

164. When that conduct is added to the statements made by the Appellant during the course of the drinking session at the bar and the reaction (or lack of it) by the complainant, it augments that possibility to a reasonable hypothesis. In particular, the comments by the Appellant directly inviting the complainant to engage in sexual conduct, whether or not they are “usual comments” in that industry, when not immediately dismissed as unacceptable, form a reasonable basis for a view that the Appellant may have formed as to the willingness of the complainant to engage in the sexual conduct that occurred.

165. While the complainant intended, understandably, that her conversation with her boyfriend, Andrew, would have the effect that it would be known to the Appellant that it was her boyfriend with whom she desired to have sex and not the Appellant, the comment may have been taken in an entirely different way by the Appellant.

166. Added to that conduct and those statements, is the willingness of the complainant to follow the Appellant back to the office and to enter his office on his invitation. Given the earlier express invitation by the Appellant for the complainant to return to the office and engage in sexual conduct with him, there was a reasonable basis upon which the Appellant could have drawn the conclusion that the complainant’s expressed desire for sex would be fulfilled with the Appellant. In other words, there is a reasonable hypothesis, on the evidence inconsistent with guilt for the conduct of the Appellant when first in the office and the Crown has not satisfied its burden of proof.

167. Attention must then be drawn to the evidence of the complainant that, at one stage, the timing of which is unclear, she was sitting on the lap of the Appellant, kissing him. Although her evidence is that she was not “actively kissing” (whatever that may mean), the most likely scenario is that this occurred when they first entered, or shortly after first entering, the Appellant’s office. Certainly, that is a reasonable possibility available on the evidence.

168. When that conduct is added to all of the earlier conduct in the bar and the voluntary accompanying of the Appellant to the office, there is a reasonable basis for the Appellant considering that the complainant was consenting to sexual conduct. Further, on that basis, the Crown has not satisfied the onus it has to prove beyond reasonable doubt that the Appellant knew that the complainant did not consent to the sexual conduct.

169. One must then deal with the further events in the office, and the extent to which those events affect the knowledge of the Appellant or whether the Appellant had no reasonable grounds for believing that the complainant was consenting. On the foregoing analysis, the complainant, after entering the office, sat on the Appellant’s lap and they kissed.

170. Thereafter, the complainant was invited to sit on the Appellant’s desk and did so. According to the complainant’s evidence, the Appellant approached the complainant, pulled up her skirt and pulled down her stockings and underwear in one movement.

171. The complainant said, “Get off me, I don’t want it.” The complainant testified that the Appellant then sat in front of her and engaged in the sexual conduct which gave rise to Count 1, earlier described, and at the same time placed his hands on her thighs “so that she couldn’t move”. There is no evidence that the Appellant was aware, from anything said or done by the complainant, that the complainant was unable to move.

172. As a consequence, notwithstanding the statement by the complainant that she did not want it and assuming that statement was true (as earlier explained), there is a reasonable hypothesis that the Appellant could have considered the protest nominal, particularly in light of the complainant’s acquiescence in the conduct, in circumstances where the Appellant may have thought that the complainant may have been able to move away. Moreover, the relative timing of the protest by the complainant and the oral contact with her genitalia is a little vague.

173. The complainant, according to her evidence, put her hands on the Appellant’s head and tried to push it away. Presumably, that action resulted in the licking and sucking stopping. Further, the complainant said “Get off me, I don’t want it”. Leaving aside for present purposes the fact that the wording of that protest was given in precisely the same terms as the earlier one (and there may have been, given the intoxication of the complainant, some confusion as to when that comment was made) as a consequence of that complaint, the Appellant did stop the licking and sucking. Instead, he engaged in digital penetration and “masturbation” of the complainant with his hands (Count 2).

174. Immediately after that conduct, the complainant was lying on her back, attempting to put on her stockings and underwear. The Appellant lay over the complainant’s legs licking and sucking her genitalia.

175. Once more the complainant said, when experiencing the foregoing conduct, “Get off me, I don’t want it!” and again, the Appellant ceased oral contact with the complainant’s genitalia and engaged in digital penetration. This last digital penetration was Count 4.

176. All of the foregoing conduct of the Appellant amounts to the conduct for which he was charged on Counts 1, 2, 3, and 4 and of which the jury acquitted him.

177. Once that conduct had occurred, the complainant saw the Appellant unzip his pants, pull them down and crouch down, as if to engage in penile penetration. The complainant said (as earlier recited), “If you do that, it will be rape.” According to the complainant the Appellant backed off a little at that comment.

178. Thereafter, the Appellant engaged again in oral contact with the genitalia, except on this occasion in a “69” position with the Appellant’s penis over the complainant’s mouth. The Appellant then masturbated himself with his hand; the complainant put her hand over his penis to push it away but the Appellant held her hand there and moved it in a manner consistent with masturbation, until he ejaculated on the carpet and her clothing. There was no semen found on the carpet (although this may be a neutral fact) and there was no semen found on the complainant’s clothing. During the masturbation conduct, the complainant and the Appellant were facing each other and the Appellant’s right hand was on the complainant’s left shoulder.

179. The complainant then stood facing the desk, and pulled up her underwear. The Appellant stood behind the complainant, pulled down her stockings and underwear (once more) and engaged in digital penetration. The foregoing is the only charge for which a conviction was entered that explains the abrasions to the posterior fourchette, which, in the earlier evidence, was caused by penetration.

180. All of the conduct last mentioned relates to Counts 5 (oral contact with the genitalia), Count 6 (masturbation) and Count 7 (digital penetration). For each of these Counts, the Appellant was found guilty.

181. On the foregoing analysis of the evidence, I have concluded that the earlier conduct, amounting to Counts 1, 2, 3 and 4 was conduct in respect of which the Crown had failed to prove, beyond reasonable doubt, that the Appellant knew that the complainant was not consenting or did not have a reasonable basis for such belief.

182. The conduct that amounted to Counts 5, 6 and 7 all occurred after the complainant exclaimed to the Appellant, “If you do that, it will be rape”. Whether or not it was rape, within the meaning that the complainant understood, or that the Appellant understood, that comment, more than the earlier comments, made clear that consent was not forthcoming. The earlier comments could easily have referred, given their timing, only to the oral contact with the genitalia. That is particularly so given the conduct in the bar and the kissing in the office.

155. Moreover, on the complainant’s evidence, the Appellant stepped back on hearing the words “It will be rape”. It was open for the jury to conclude beyond reasonable doubt that at least at that point the lack of consent was made express by the complainant and, thereafter, there was no reasonable basis for considering the complainant was consenting. Furthermore, the act of stepping back discloses that the Appellant had sobered up enough to realise the import of what was being said to him and what was being done by him.

156. That analysis, which is similar to the analysis put forward by the Crown, is sought to be negated by the Appellant by the fact that the jury acquitted on Count 8 (penile penetration occurring after the digital penetration that gave rise to Count 7). In my view, there is no inconsistency between the acquittal on Count 8 and the finding of guilt on Counts 5, 6 and 7.

157. The acquittal on Count 8 requires a finding, beyond reasonable doubt, that there was penile penetration of the vagina from the rear. Plainly, on her own evidence, the complainant could not have seen whether there was penile penetration. It was open to the jury to take the view that, given her state of intoxication, there was a reasonable possibility that the complainant could have misunderstood or misinterpreted the feeling of digital penetration and thought it was penile penetration and consequently acquitted. All that was necessary, if the judge’s direction were followed, was for that to be a reasonable hypothesis on the evidence. Further the forensic evidence does not disclose any semen on or around the vagina.

158. The foregoing analysis does not deal with the conviction on Count 9. A number of explanations have been given by the Crown for that conviction. In my view none of the explanations overcome the reasonable doubt that arises in relation to that charge.

159. It may well be that the jury were swayed by the existence of DNA evidence. DNA evidence proves the sexual conduct; it does not prove lack of consent.

160. It may well be that the jury considered the events in Count 9 occurred in a timeframe that placed it after the statement by the complainant, “If you do that, it will be rape”. This view may have been taken because the charge (Count 9) was the last of the charges on the indictment and followed, on the indictment, after Counts 5, 6, 7 and 8.

161. Whatever be the reason, in my view it was not open to the jury to find beyond reasonable doubt that the conduct charged in Count 9 (oral contact with, and fondling of, the breasts) occurred at a time when the Appellant knew (as that term has been defined) that the complainant was not consenting.

162. There are two fundamental reasons for that. The conduct that amounts to Count 9 is not given a consistent timing by the complainant. In her evidence in chief the complainant said it was whilst on the desk. To Dr Houston, she gave an account that suggests it was after she was on the desk. If the complainant’s evidence were accepted, it occurred while on the desk. As a consequence, it is reasonably open that it could have occurred during the conduct that gave rise to Counts 1, 2, 3 and 4.

163. Further, the conduct itself leaves one in doubt as to its timing. It may have occurred when the complainant was sitting on the Appellant’s lap. It may have occurred when sitting on the complainant’s desk; or when she was lying on her back on the floor. It is most unlikely to have occurred when the complainant was behind her.

164. As a consequence of the foregoing, and the lack of certainty as to timing, there are two significant doubts. Either it occurred at a time before the lack of consent was expressed in unambiguous terms and understood by the Appellant or it could not have occurred without some significant physical contortion. In either case, there must be a reasonable doubt as to its occurrence at a time when the Appellant knew that the complainant was not consenting.

165. It has been necessary to read and re-read the evidence at trial and to recite the detail of that evidence more fully than ordinarily would be the case.

166. Nevertheless, in my view, there is no inconsistency in the guilty verdicts in Counts 5, 6 and 7 with the acquittals in Counts 1, 2, 3, 4 and 8. Moreover, with the exception of Count 9, it was open to the jury to convict the Appellant. There was evidence upon which the jury could convict and, as explained, to have found guilt proved beyond reasonable doubt.

167. I do not have a doubt as to the Appellant’s guilt on Counts 5, 6, and 7. I do have a doubt as to the Appellant’s guilt on Count 9 and, as a consequence, I consider that a jury, properly instructed and performing its function, should also have had that doubt. That doubt is not resolved by any perceived advantage that the jury may have had in seeing or hearing the evidence. In circumstances where, on appeal, I experience a reasonable doubt as to the charge, which doubt is not as a result of the disadvantage of not seeing or hearing the evidence, I should propose that the conviction be quashed and I so propose.

Conclusion

196. I do not consider that the verdicts of guilty on Counts 5, 6 and 7 are inconsistent with any of the acquittals determined by the jury, including the acquittal on Count 8. Further, on an analysis of the evidence, I do not have a doubt as to the guilt of the Appellant on Counts 5, 6 and 7, even bearing in mind the acquittals on Counts 1, 2, 3, 4 and 8.

197. In my view it was not necessary in order for the jury to acquit on Counts 1, 2, 3, 4 and 8, for the jury to come to the conclusion that the complainant was untruthful. In order to come to the conclusion that the Appellant should be acquitted on Count 8, the jury was required to come to the conclusion that, as to the occurrence of penile penetration, the complainant was unreliable.

198. As earlier stated, I have a doubt as to the timing of the conduct that occurred and gave rise to Count 9, which doubt, when one takes into account the acquittals on Counts 1, 2, 3 and 4 is a doubt that requires the conviction on Count 9 to be set aside.

199. The foregoing conclusions have been reached without dealing, or needing to deal, with the effect of the provisions, to which reference was earlier made, as to the effect of intoxication on consent. [29] Nor has it been necessary to discuss or rely upon any notion of the jury applying a “merciful”[30] view or any “innate sense of fairness and justice”. [31]

     29. s 61HA(6)(a) of the Crimes Act. See [126], infra.

     30. MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 365(4) and see [139], infra.

     31. Ibid, citing R v Kirkman (1987) 44 SASR 591, also recited at [139], infra.

200. One other matter requires discussion. Given that the ground of appeal is not one which involves a question of law alone, ordinarily, leave to appeal would be needed. In this instance, the trial judge granted a Certificate under s 5(1)(b) of the Criminal Appeal Act 1912, being a Certificate that it is a fit case for appeal against the Appellant’s conviction. Leave to appeal, is, therefore unnecessary. Given the availability of a right to seek and obtain leave to appeal, the utility of this provision, or the desirability of the grant of a Certificate, is not a matter on which I will comment.

Re-sentencing

201. As the foregoing makes clear, the orders I propose would quash the conviction on Count 9 and otherwise leave the convictions unaffected. As a consequence, there is a need to re-sentence.

202. An aggregate sentence has been imposed, which, in my view, is below the range that is appropriate for the offences and this offender. Nevertheless, there is no Crown appeal on sentence and otherwise no complaint as to the sentence imposed.

203. It is inappropriate to increase any sentence in the absence of warnings and it would be an error to do so without the issue having been raised or opened up to the parties. As a consequence, I will leave the indicative sentences unaffected and, in quashing the verdict on Count 9, seek to give effect to the intention of the sentencing judge by reducing the aggregate sentence by an amount that seems to reflect the relative seriousness attributed to Count 9.

204. I note that the Appellant has a criminal history that includes domestic violence offences, resisting police and other violent crimes (including assault occasioning actual bodily harm in a domestic violence context).

205. I propose, as a result of quashing the conviction and sentencing without regard to the indicative sentences for that offence, to reduce the aggregate head sentence by six (6) months and the non-parole period by three (3) months.

206. I propose that the Court make the following orders:

1. Appeal be allowed in part;

2. The conviction of the Appellant, Glen Paul Darby, on Count 9, indecent assault, contrary to s 61L of the Crimes Act 1900, be set aside and the conviction quashed;

3. The Court direct a judgment and verdict of acquittal of the Appellant on Count 9;

4. The sentence imposed upon the Appellant be set aside and in lieu thereof an aggregate sentence be imposed of imprisonment for three (3) years and six (6) months with a non-parole period of one (1) year and nine (9) months.

5. The sentence commence on 11 August 2016, the non-parole period shall conclude on 10 May 2018 and the head sentence conclude on 10 February 2020.

207. BELLEW J: I agree with Rothman J.

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Endnotes

(ii) On the question of reasonable doubt see, inter alia, the directions at pp. 4.8; 7.1 – 7.7; 8.4;

(iii) As to consent, see directions pp. 10.8; 11.6; 12.3 – 12.8; 14.9;

(iv) As to the requirement to acquit if the complainant is not believed, see directions pp. 33.9 – 34.1; 36.5 – 40.5.

Decision last updated: 11 August 2016