Director of Public Prosecutions v Sheridan (a pseudonym) (No 5)
[2025] ACTSC 75
•27 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | DPP v Sheridan (a pseudonym) (No 5) |
| Citation: | [2025] ACTSC 75 |
| Hearing Date: | 27 February 2025, 4 March 2025 – 5 March 2025 |
| Decision Date: | 5 March 2025 |
| Reasons Date: | 6 March 2025 |
| Before: | Baker J |
| Decision: | I declined to order a directed verdict of acquittal in respect of either count 5 or count 8. |
Catchwords: | CRIMINAL LAW – application for directed verdict of acquittal for two counts – whether position of the complainant during alleged sexual offending an essential particular – count particularised as the “first instance” of anal intercourse – complainant’s evidence |
| regarding “switching” between anal and vaginal penetration | |
| unclear – high threshold for directed verdict not met for either count – application dismissed | |
| Legislation Cited: | Crimes Act 1900 (ACT), ss 28(2)(a), 53(1), 54(1) |
| Cases Cited: | Baines v The King [2023] NSWCCA 302 Brown v Dunn (1893) 6 R 67 (HL) DPP v Judge Lewis of County Court of Victoria [1997] 1 VR 391 DPP v Sheridan (a pseudonym) [2025] ACTSC 25 DPP v Sheridan (a pseudonym) (No 2) [2025] ACTSC 56 PPP v The Queen [2010] VSCA 110; 27 VR 68 R v DWB [2008] VSCA 223; 20 VR 112 R v GAT [2024] NSWCCA 32 R v Liddy [2002] SASC 19; 81 SASR 22 R v TS [2017] NSWCCA 247 RMS v R [2013] NSWCCA 285 S v The Queen [1989] HCA 66; 168 CLR 266 |
| Parties: | Director of Public Prosecutions (Crown) |
| Steve Sheridan (a pseudonym) (Accused) | |
| Representation: | Counsel |
| S Saikal-Skea (Crown) | |
| S Jerome (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions | |
| Hugo Law Group (Accused) | |
| File Number: | SCC 52 of 2024 |
| BAKER J: |
EDITED EX TEMPORE REASONS
Overview
1. The accused, Steve Sheridan (a pseudonym), has been charged with one count of
choking, suffocating, or strangling, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT);
one count of sexual assault in the third degree, contrary to s 53(1) of the Crimes Act; and
six counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act.
At the conclusion of the complainant’s evidence in chief, counsel for the accused made
an application for a directed verdict in respect of counts 5 and 8 of the indictment, each
of which concern allegations of sexual assault constituted by an act of anal penetration.
3. I declined to order a directed verdict of acquittal of either count at that time. In particular,
I referred to R v TS [2017] NSWCCA 247 and Director of Public Prosecutions v
Umunakwe [2024] ACTSC 229, which concerned applications for directed verdicts that
were made at a time when the prosecution conceded that its case had been fully
presented. No such concession was made by the prosecution in the present case. I
informed the parties that I did not consider it appropriate to forecast what other evidence
may be adduced in the prosecution case, and as such, determined that it was not
appropriate to consider the accused’s application for a directed verdict at that point in
time: see similarly RMC v R [2013] NSWCCA 285 at [44].
4. When the prosecution case was complete apart from the calling of an expert witness,
the accused made a further application for directed verdicts in respect of counts 5 and 8.
I declined that further application. These are my reasons for so finding.
Background
5. A summary of the allegations made by the prosecution is set out in DPP v Sheridan (a
pseudonym) (No 2) [2025] ACTSC 56.
6. In brief, the prosecution case is that the accused pushed the complainant onto his bed,
held her face down in the doona and engaged in penile vaginal intercourse with her
without her consent (count 1 and count 2). The accused is then alleged to have flipped
the complainant onto her back and engaged in penile vaginal intercourse with her again
(count 3). At this time, the prosecution alleges that the accused had his hands on the
complainant’s neck and was pushing down. The complainant could not breathe properly
(count 4). The accused is also alleged to have inserted his penis into the complainant’s
anus (count 5). The accused is alleged to have then engaged in further instances of
penile vaginal and penile anal intercourse with the complainant (counts 6 and 7 represent the first instance of each of these acts in that sequence). The prosecution then alleges
that the accused again inserted his penis into the complainant’s anus, this time whilst
filming that act on his mobile phone (count 8).
7. Count 5 and 8 of the indictment are each in relevantly identical terms. Both counts allege
that:
On 20 December 2018 or 21 December 2018 at Canberra aforesaid [the accused] engaged in sexual intercourse with [the complainant] without her consent, being reckless as to whether she had consented.
8. On 29 January 2025, the accused filed an application seeking an order that the
prosecution provide further particulars of the counts on the indictment (at that time, there
were seven counts on the indictment). In a judgment delivered on 11 February 2025,
McCallum CJ directed the prosecution to provide further particulars of the then counts 3,
4, 6 and 7 in accordance with her Honour’s reasons. Chief Justice McCallum declined to
order that the prosecution provide any further particulars concerning what are now
counts 5 and 8 of the indictment.
Relevant principles
9. The principles to be applied on an application for a directed verdict of acquittal were set
out in R v TS (citing RMS v R [2013] NSWCCA 285) at [16] as follows:
(a) A judge may direct a verdict of acquittal only if there is a defect in the evidence in the Crown case such that, taken at its highest, it will not sustain a verdict of guilty; if there is evidence, though tenuous, or inherently weak or vague, that is capable of supporting a verdict of guilty, it must be left to the jury: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.
(b) In a case based on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR (1991) 57 A Crim R 39.
(c) There is no power to direct an acquittal on the basis that any resultant conviction would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74; Doney v The Queen.
10. As the New South Wales Court of Criminal Appeal explained in R v GAT [2024]
NSWCCA 32, the threshold that is required for a directed verdict is very high. At [50] –
[51] of that judgment, Button J (with whom Davies and Weinstein JJ agreed) held: … it is trite law that, for a verdict of acquittal to be directed, a trial judge must come to the
view that there is no evidence whatsoever of an essential element of the offence: see Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51. The assessment by a trial judge that any verdict of guilty would be unreasonable or unable to be supported is not to the point: Doney v the Queen. It is also well-established that, when the prosecution case is circumstantial, the mere ability to formulate an alternative rational hypothesis consistent with innocence does not call for a directed verdict: R v JMR (1991) 57 A Crim R 39.
The issue calls for an answer that is not in the nature of an evaluative judgement, but rather the answer to a simple binary question: is there or is there not any evidence whatsoever of an essential element? By way of simple example, if on a count of armed robbery, there was evidence of money having been stolen from the victim by the use of force, but not a scintilla of evidence, from any source, direct or indirect, explicit or implicit, circumstantial or otherwise, that a weapon was part of the offending, then there must be a verdict by direction on that count.
11. Applying this test, Button J identified the question there under consideration as “…
whether there was any evidence whatsoever that the complainants were not
consenting…”: GAT at [52] (emphasis added).
Count 5: The first instance of anal intercourse without consent
The parties’ submissions
12. In respect of count 5, the complainant gave evidence that the accused attempted to
penetrate her anus whilst she was on her back, but that the accused was unable to do
so. The complainant said that the accused then flipped her over, and successfully
penetrated her when she was on her front.
13. Counsel for the accused submitted that the prosecution had always and only ever
particularised count 5 (that is, anal penetration) as occurring when the complainant was
on her back, and not that she was on her front at that time. Counsel for the accused
submitted that the position of the complainant during this anal intercourse was an
essential particular, because the count formed part of a sequence of acts. Counsel for
the accused also submitted that permitting the prosecution to change the particulars at
this time would give rise to a significant unfairness to the accused’s case.
14. In reply, the prosecutor accepted that the only evidence concerning the anal intercourse
which was the subject of count 5 occurred whilst the complainant was on her front.
However, she submitted that the position of the complainant was not an essential
particular. Accordingly, she contended that there was no basis for the Court to direct a
verdict of acquittal in respect of that count.
Particulars provided
15. The further amended case statement, filed on 13 February 2025, set out the prosecution
allegations concerning counts 3 to 7 as follows:
Count 3 – Sexual intercourse without consent
The accused and [sic] flipped [the complainant] onto her back. The accused inserted his penis into her vagina again. The accused told [the complainant] to look at him as he was engaging in sexual intercourse with her.
Count 4 – Choking
While the complainant was on her back with the accused penetrating her vagina with his
penis, the accused’s hands were on the complainant’s neck and he was pushing down. The
complainant could not breathe properly.
Count 5 – Sexual intercourse without consent
The accused then removed his penis from [the complainant’s] vagina, lifted her hips and
went to insert his penis into her anus. [the complainant] said “no, don’t, I don’t want you to do that”. The complainant thinks this is the first time she verbalised her lack of consent. By
this stage, the accused’s hands were no longer on [the complainant]’s neck and therefore
she was able to speak. The accused said words to the effect of, “but it’s so much better”, “it’s tighter” and “it’s nicer”. The accused then inserted his penis into [the complainant]’s anus
and thrusted his hips. [The complainant] began to cry.
Count 6 – Sexual intercourse without consent
Count 7 – Sexual intercourse without consent
The accused then flipped [the complainant] back onto her stomach and pushed her head down into a pillow or the mattress or doona. He then alternated between inserting his penis
into [the complainant]’s vagina and anus, approximately a couple of times. The first
penetration of the vagina is Count 6. The first penetration of the anus is Count 7. The complainant does not know whether the accused started with the vagina or anus or precisely how many times he penetrated her. (emphasis in original)
16. In the opening address, the prosecutor described counts 2 – 5 in the following terms:
If you have a look at Count 2, sexual intercourse without consent, the prosecution case is
that at this point, he inserted his penis into her vagina. That’s Count 2. He then is alleged to
have removed his penis from her vagina and he flipped her over on to her back and he again inserted his penis into her vagina. That is Count 3. ... Count 4 is the choking.
Prosecution case is that while he’s penetrating her vagina, the accused placed his hands on
her neck and applied pressure.
I expect you’ll hear the complainant say that while being choked, she could not breathe
properly. Count 5 is the anal penetration, the first act of anal penetration. So, the prosecution case is that after he has choked her, he then removes his penis from her vagina,
lifted her hips and went to insert his penis into her anus. And she says that she said, ‘No,
don’t’ or words to that effect. I anticipate she will tell you that she thinks this was the first time
she verbalised her lack of consent. She says that he responded with something like, ‘But it’s so much better’ and that he then inserted his penis into her anus and commenced having
intercourse with her like that.
…
… The accused then moved the complainant to a different position with her head down
and he alternated inserting his penis into her vagina and anus.
The first penetration of the vagina in that alternating sequence, the first penetration of the vagina is Count 6. The first penetration of the anus in that alternating sequence is Count 7. I
anticipate [the complainant] will tell you that she doesn’t know necessarily which he started
with or how many times he alternated. I anticipate she will tell you that by this time the sexual
acts were causing her to be in a lot of pain. (emphasis added)
Determination
It is common ground that the complainant’s evidence is that the conduct giving rise to
count 5 occurred whilst the complainant was on her front, and not whilst she was on her
back. The issue for determination is whether the complainant’s position was, or was
made, an essential particular of the prosecution case.
18. A convenient summary of the case law relating to the requirement for particulars is set
out in the judgment of Dhanji J in Baines v The King [2023] NSWCCA 302 at [112] –
[113]. Whilst his Honour was there in dissent, his Honour’s summary of the principles to
be applied are not contentious:
As part of a fair trial, an accused will ordinarily be entitled to particulars of the charge. That
is, an accused person “is entitled to be appraised not only of the legal nature of the offence
with which [they are] charged but also of the particular act, matter or thing alleged as the
foundation of the charge”: Johnson v Miller (1937) 59 CLR 467 at 489; [1937] HCA 77 per Dixon J. The accused is “entitled to be given as high a degree of particularity concerning a
criminal charge as the subject matter will bear”: KRM v The Queen (2001) 206 CLR 221;
[2001] HCA 11 at [15] (per McHugh J); see also Kirk v Industrial Court of New South
Wales (2010) 239 CLR 531; [2010] HCA 1 at [26].The combination of the above principles may have the result that the manner in which the Crown particularises its case will require it to prove not just the elements of the offence but the particulars relied on. That is, there will be cases where a particular matter that is not a legal ingredient of the charged offence, will, as a result of the manner in which the trial is run, need to be proved beyond reasonable doubt: see R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep); Regina v Hughes [2000] NSWCCA 3 at [17]-[18]; Cawthray v R [2013] NSWCCA 105 at [89]; Hamilton v Director of Public Prosecutions (NSW) (2020) 287 A Crim R 268; [2020] NSWSC 1745 at [87]-[98]; Dean v R [2019] NSWCCA 27 at [19].
While the elements of an offence are fixed, the Crown may be permitted to shift from its particulars. This can, potentially, occur at any stage in a trial. However, as was noted in R v
VHP, “in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars”. Of course, the later the
application, the more likely that a change in particulars will result in unfairness: King v The
Queen (1986) 161 CLR 423 at 432; [1986] HCA 59. (citations omitted)19. The extent of particulars required is informed by the purpose of particulars. As Redlich JA
explained in PPP v The Queen [2010] VSCA 110; 27 VR 68 at [42], the purpose of
particulars include:
(1) to enable the accused to exercise the right to object to evidence on the ground of
relevance;
(2) to permit the accused to know how the charge might be answered;
(3) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4) to enable the trial judge to instruct the jury properly as to the law to be applied;
(5) to ensure that there is a unanimity of view by the jury as to a specific act by the accused;
(6) in the event of conviction, to enable the court to know the offence for which the defendant
is to be punished;(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. (citations omitted)
20. In a case such as the present, where there is evidence of a sequence of acts, some of
which are charged, and some of which are uncharged, sufficient particulars must be
given to enable an accused to know which alleged act is the subject of each individual
count. In order to distinguish between different counts, particularity may be required at a
level of granularity which would not otherwise be necessary: see S v The Queen [1989]
HCA 66; 168 CLR 266. As the South Australian Supreme Court held in R v Liddy [2002]
SASC 19; 81 SASR 22 at [262]: “[p]articulars must be given of the conduct which is the
subject of the charge and of the incident which will distinguish it from other similar
conduct” (emphasis added).
21. Generally speaking, in respect of an indictment alleging a single count of sexual
intercourse without consent, it would not usually be the case that the precise positioning
of the complainant and the accused would be an essential particular. However, where
the indictment contains more than one count and where there are two acts alleged in
short succession, a change in the position of the complainant and/ or the accused may
be the only matter that distinguishes between the alleged counts. In such a case, the
position of a complainant and the accused may become an essential particular “as a
result of the manner in which the trial is run”: Baines at [113].
22. The allegations concerning count 5 are not of this character. As can be seen from the
extract at [16] above, the prosecutor clearly particularised Count 5 in her opening as “the
first act of anal penetration”. It is permissible for a count to be particularised in this way:
see PPP v The Queen; DPP v Judge Lewis of County Court of Victoria [1997] 1 VR 391,
398-400; R v DWB [2008] VSCA 223; 20 VR 112, 118
23. The prosecutor acknowledges that it was an inference from her opening that the
complainant was on her back at the time of the alleged intercourse. She has advised the
Court and the accused that she will not be closing on this basis. Rather, she accepts that
the complainant’s evidence is that the alleged intercourse occurred when the
complainant was on her front.
24. I do not accept that the accused was unfairly prejudiced by the way in which the case
was presented by the prosecution. Neither the Further Amended Crown Case Statement,
nor the prosecutor’s opening contained a clear statement as to the complainant’s position
during count 5. The positioning of the complainant is only ascertainable by inference, in
that in the Further Amended Crown Case Statement and in the opening, the complainant
was alleged to have been on her back at the time of count 3, and there was no mention
of the complainant changing position until the commencement of count 6. If the position
of the complainant in count 5 was to be understood as an essential particular of count 5,
one would have expected that to be clearly stated in the opening and/or the Crown Case
Statement. It was clear from the opening and the Crown Case Statement that the
distinguishing feature for count 5 was that it was “the first time” that anal intercourse
occurred, and not the position of the complainant.
25. In these circumstances, the position of the complainant at the time of count 5 was not an
“essential particular” of that count. For this reason, it is open to the prosecutor to rely on
the complainant’s evidence that she was penetrated anally, whilst on her front, to
establish count 5. Accordingly, there is no basis to direct a verdict of acquittal in respect
of this count.
Further application with respect to count 5
In her application at the close of the prosecution case, the accused’s counsel did not
identify any specific prejudice that was alleged to have been occasioned by the change
in the complainant’s account relating to her position in respect of count 5.
27. However, after the commencement of the accused’s case, the accused’s counsel
renewed her application for a directed verdict of acquittal and contended that the
prosecutor’s changed position had deprived her of an opportunity to cross-examine the
complainant about the complainant’s physical position at the time of the acts alleged to
constitute count 5.
28. I do not accept that any prejudice has been occasioned to the accused by reason of any
‘change’ in the prosecution case. Prior to the commencement of the cross-examination,
I informed the accused’s counsel that her Brown v Dunn (1893) 6 R 67 (HL) obligations
required her to put to the complainant the substance of the accused’s case to the
complainant, including in respect of the allegations relating to count 5. This was done.
The accused’s counsel was not denied an opportunity to cross-examine the complainant
about any inconsistencies in her interview with police and her evidence in relation to the
complainant’s position at the time of count 5. The prosecutor had never accepted that
the position of the complainant was an essential particular, nor was there any ruling, or
indication, by the Court to this effect. It remained open to the accused’s counsel to cross-
examine the complainant about any inconsistencies between her evidence and her
account to police.
30. Although unconventional, it is possible for a complainant to be recalled even at the
conclusion of the accused’s case. I asked the accused’s counsel whether she sought for
that to occur. She did not make that application.
31. Finally, in any event, it is not clear to me that there is in fact any inconsistency in the
complainant’s account that is of any significance. The complainant’s evidence was that
the accused repeatedly attempted to penetrate her anus whilst she was on her back, but
that he only successfully penetrated her, moments later, when she was on her front. In
circumstances where there were frequent movements in the positions of the complainant
and the accused during intercourse, the precise position of the complainant at the time
of successful, as opposed to attempted, penetration would only be significant if, contrary
to the above, the position of the complainant was an essential particular.
Accordingly, I declined the accused’s further application for a directed verdict of acquittal
on this count.
Count 8: The final instance of anal intercourse without consent, which was filmed
The parties’ submissions
33. As noted above, count 8 alleged an instance of anal intercourse that was said to have
occurred whilst the accused was filming that act. As set out in both the Further Amended
Crown Case statement and the prosecutor’s opening address, this act was distinguished
from the other alleged offences in that this was the only sexual act which is alleged to
have been filmed by the accused. Consistently with these allegations, the complainant
gave evidence that anal penetration occurred whilst the accused was filming the act on
his mobile phone.
Following McCallum CJ’s judgment in DPP v Sheridan (a pseudonym) [2025] ACTSC
25, the prosecution provided the following particulars for Count 7:
The accused alternated between inserting his penis into the complainant’s vagina and anus.
The first penetration of the complainant’s anus was without her consent and he was reckless
as to whether she was consenting.
35. The accused accepted that count 8 was adequately particularised, and that the
complainant’s evidence, if accepted, would establish that the accused anally penetrated
the complainant whilst he was filming her. However, the accused contended that, even
taken at its highest, the complainant’s evidence concerning count 8 was not sufficient for
it to be distinguished from count 7. Specifically, Ms Jerome submitted that the
complainant’s evidence was such that the anal intercourse which was alleged to
constitute count 7 may be the same act of anal intercourse which was alleged to
constitute count 8.
36. The prosecutor submitted that there was a distinction between the acts which were
alleged to constitute count 7 and count 8 in the complainant’s evidence, and that, taken
at its highest, the evidence was such as to support both counts.
Evidence
Resolution of this issue requires that close attention be given to the complainant’s
evidence concerning counts 7 and 8.
38. In her evidence in chief, the complainant gave evidence regarding counts 7 and 8 as
follows:
And I remember him switching between the two – like he would pull out, put it - he’d pull
out and he would put it back into my vagina and then back into my anus. And there was
a point – I’m not sure how far in it was, but out of the corner of my eye I saw his flashlight
and I remember initially being a little confused as to what it was. But it - it occurred to me
that he may have filmed it a little bit. The flashlight wasn’t on for very long. And I remember sort of hearing a little playback and then the – like, no more sound – and I sort of – I just wanted to be done. I was – I was in a lot of pain. I wanted to go home. I wanted him to finish so that he – I could go home. I don’t – I remember it lasting I suppose longer than the rest of
it. (emphasis added)
39. When the prosecutor asked what it was “that lasted longer”, the complainant said:
The anal penetration. And that may have just been because it was more painful than the rest
of it. But that’s how I remember it. I remember really just wanting to be done. I really just
wanted it to be finished. I just wanted it to be done.
40. At a later point in the examination in chief, the prosecutor asked:
Prosecutor: You described that once he successfully put his penis in your anus for the first time that you say, 'There was no lube. No prep. He kept going for a while.'?
Complainant: M'mm.
Prosecutor: Then you describe that he pulled out and switched between the two; is that correct?
Complainant: That's my recollection. Yes.
Prosecutor: And you describe switching between your vagina and your anus?---
Complainant: M'mm.
Prosecutor: I'm going to ask you specifically about that part of the incident. When he was doing that, about how long was he penetrating, say, your vagina before he alternated to your anus, and vice versa?
Complainant: I don't know. I don't remember.
Prosecutor: And do you recall how many times it was that he switched between the two?-
Complainant: --At least once. once,' can you just be very descriptive after the period of anal penetration that went on for a while, to the best of your recollection, how many times did he then alternate back and forth?
Complainant: I can't remember with enough certainty to recount it here.
Prosecutor: And then you described - I'm sorry, after the anal penetration, the initial anal penetration when on for a while and then he started doing this. Was there a penetration - what specific parts of you did he penetrate during that alternating back and forth, just to be clear?
Complainant: Sorry?
Prosecutor: I think I have asked a confusing question but I just want to be clear what specific parts of you he was - what body parts he was then penetrating when he was going back and forth at least once?
Complainant: My anus and vagina.
Prosecutor: And then after that, you described - he continued to have anal sex with you and that's when you saw the light come on?-
Complainant: M'mm.
Prosecutor: About how long was that last period of anal intercourse during which the light came on?
Complainant: -I'm not sure how long it was. I just remember feeling like it was the longest part of the evening, I suppose. Like, the longest part of the encounter.
Prosecutor: How long do you recall the light having been on for, if you are able to recall?
Complainant: About 10 seconds, 15 max.
Determination
As outlined above, count 7 was particularised as being the “first penetration” in the
sequence of the accused alternately penetrating the complainant’s vagina and anus.
Count 8 was particularised as a subsequent act of penetration of the complainant’s anus
which occurred whilst the accused filming the intercourse.
42. The accused would be entitled to a directed verdict of acquittal if the act of anal
intercourse which was alleged to constitute count 7 was the same act of anal intercourse
which was alleged to constitute count 8.
I accept the accused’s contention that the complainant’s evidence is unclear on this
issue. In particular, it is unclear whether, when the complainant spoke of “switch[ing]”
between anal and vaginal intercourse “at least once”, the complainant meant that there
had been at least one repeated sequence of vaginal, then anal intercourse; in other
words, that there was vaginal intercourse (count 6), then anal intercourse (count 7), then
vaginal intercourse (uncharged), then anal intercourse (count 8), or whether there was at least one change in the form of intercourse: in other words, that there was vaginal
intercourse (count 6), then anal intercourse (count 7). If “switching between the two” is
properly understood as the latter, and accepting that the complainant was only sure that
there had been one switch, then the anal intercourse which was the subject of count 7
may be the same act of anal intercourse which is the subject of count 8.
44. However, a verdict of acquittal is not justified where evidence is simply ‘unclear’. The
proper conclusion to be drawn from the evidence is a question of fact, which is for the
jury to determine. It is only where there is “no evidence whatsoever of an essential
element of the offence” that a directed verdict of acquittal may be entered: GAT at [51].
45. In the present case, whilst there was a lack of clarity in this aspect of the complainant’s
evidence in respect of the sequence, it cannot be said that there is “no evidence
whatsoever” that two separate instances of anal intercourse did not occur. A possible
interpretation of the complainant’s description of the accused “switching between the
two” is that the complainant was conveying that the entire sequence of vaginal and then
anal penetration, or vice versa, occurred at least once. This understanding may be
supported by the particular phrasing which the complainant used when first describing
the switching – “like he would pull out and he would put it back in my vagina and then
back into my anus”. Further, the manner in which the complainant gave this evidence
may also be of significance.
46. In these circumstances, the high threshold for the entry of a directed verdict was not
established in respect of count 8.
47. Nonetheless, the raising of this matter has highlighted the need for careful directions to
be provided to the jury with respect to counts 7 and 8. In my instructions to the jury
concerning these counts, I will emphasise that they cannot convict the accused of
count 8 unless they are satisfied beyond reasonable doubt that the penetration which is
referred to in that count is a separate act of penetration to that which is alleged to
constitute count 7.
Orders
48. For the reasons outlined above, I declined to order a directed verdict of acquittal in
respect of either count 5 or count 8.
I certify that the preceding forty eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker
Associate: A McKay
Date: 9 April 2025
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