Fiddes v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0071

COREY FIDDES	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2025
DATE OF JUDGMENT:	26 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 141
JUDGMENT APPEALED FROM:	[2024] VCC 341 (Judge Moglia)

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CRIMINAL LAW – Appeal – Conviction – Rape – Five charges involving one complainant in the course of one incident – Jury convicted applicant on three charges and acquitted him of two – Whether verdicts inconsistent – Guilty verdicts capable of being reconciled with not guilty verdicts – Appeal dismissed.

CRIMINAL LAW – Appeal – Conviction – Rape – Whether guilty verdicts unreasonable or not able to be supported having regard to the evidence – Whether evidence of complainant contained so many untruths, discrepancies and inadequacies that no jury acting rationally could have been satisfied beyond reasonable doubt as to applicant’s guilt – Open to jury to be satisfied beyond reasonable doubt – Appeal dismissed.

Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Pears v The King [2025] VSCA 35; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Booth v The King [2024] VSCA 318, applied.

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Counsel
Applicant:		Mr DA Dann KC with Mr M McGrath
Respondent:		Mr P Bourke KC with Mr G Buchhorn
Solicitors
Applicant:	Anthony Isaacs Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
ORR JA:

On 31 December 2020, the applicant (who was then aged 20) and the complainant (who was also then aged 20) attended a New Year’s Eve party at a house in Elsternwick. At midnight, while on a dance floor on the ground floor of the house, the applicant and the complainant, who had not previously met, kissed. Shortly thereafter, they went upstairs and entered one of the bedrooms of the house. What occurred thereafter led to the applicant being charged with five counts of raping the complainant.[1]
[1]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
On 1 December 2023, following a 14 day trial, a jury found the applicant guilty of three of the rape charges (charges 2, 4 and 5) and acquitted him of the remaining charges (charges 1 and 3). On 19 March 2024, the judge sentenced the applicant to a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 4 months.[2]
[2]DPP v Brenner (a pseudonym) [2024] VCC 341 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal against his convictions. His proposed grounds of appeal are:
1.The guilty verdicts of the jury were unsafe and unsatisfactory.
2.The guilty verdicts on charges 2, 4 and 5 are inconsistent with the not guilty verdicts on charges 1 and 3.

Crown case and defence response

In summary, as disclosed in the summary of the prosecution opening,[3] the essential features of the Crown case were as follows:
(1)After they finished kissing on the dance floor, the applicant asked the complainant if she would like to play some pool, to which the complainant agreed. The applicant led the complainant upstairs to a bedroom. There was no pool table in the bedroom. The applicant closed the door, and the complainant realised that he wanted to become intimate with her. At that point, the complainant stated that she really did not want to have sex. The applicant agreed, saying, ‘Nah, I don’t want to either’. The complainant felt relieved by that response.
(2)The complainant and the applicant were sitting on a bed in the room, kissing for some time, before the complainant decided that she wanted to leave. The complainant said, a number of times, that she had had enough and that she did not think that the applicant was listening to her. The applicant said, ‘We’re just kissing’. The complainant told him, ‘No, I’m drunk. I don’t want to have sex’. The applicant continually (and confusingly) agreed that he didn’t want to have sex, while at the same time removing the complainant’s pants. The applicant said, ‘Oh, I’m so drunk’, but he did not appear to the complainant to be affected by alcohol. He continued to remove one of the complainant’s legs from her pants as he was talking to her. He asked her if he could perform oral sex on her. The complainant refused.
(3)Following this, the applicant moved the complainant’s underwear to one side and then inserted his fingers into her vagina. He then said, ‘I think you do want to have sex, because your pussy is really wet’. The complainant again said, ‘No, again, I don’t want to have sex. That’s not how it works’. The applicant’s digital penetration of the complainant’s vagina formed the basis for charge 1 (of which the applicant was acquitted).
(4)Shortly after digitally penetrating the complainant, the applicant, who had taken his own pants off, pulled his underwear down, exposing his penis. He then inserted his penis into the complainant’s vagina. The complainant again said, ‘I feel like you’re not listening’. The applicant replied, ‘But you kissed me on New Year’s’. This was the basis for charge 2 (of which the applicant was convicted).
(5)Thereafter, the complainant continually said to the applicant, ‘I really don’t want to have sex. I really don’t want to do this. I think we should go downstairs’. The applicant continued to agree with her, but continued to engage in sexual acts. The applicant removed his penis from the complainant’s vagina because he could not maintain an erection. He sat on the bed, masturbating, trying to get an erection, and the complainant ‘scooted away’ from the applicant on the bed. The applicant then grabbed the complainant’s legs, pulled her back towards him, and again inserted his penis into her vagina. This was the basis for charge 3 (of which the applicant was acquitted).
(6)The applicant again removed his penis from the complainant’s vagina, as he was not able to maintain an erection. The complainant ‘scooted backwards’ on the bed, away from the applicant. The applicant grabbed her and tried to have sex with her again. This happened three times.
(7)The applicant became frustrated. He pulled the complainant off the bed and sat her on the floor. He then inserted his penis into her mouth, taking hold of her head with both hands. The applicant held the complainant’s face and thrust his penis into the complainant’s mouth repeatedly. This was the basis for charge 4 (of which the applicant was convicted).
(8)The applicant then stood the complainant up. She flopped back onto the bed, whereupon he inserted his penis into her vagina again and started thrusting. This was the basis of charge 5 (of which the applicant was convicted).
[3]Filed and served pursuant to s 182 of the Criminal Procedure Act 2009.
In summary, as disclosed in the response of the accused to the summary of prosecution opening,[4] the defence response to these allegations was as follows:
(1)After they finished kissing on the dance floor, the applicant and the complainant agreed that they would go upstairs so that ‘they would be able to continue their intimacy in a more private setting’. There was no plan for the two of them to play pool. As they walked upstairs, they held each other’s hands. They entered the bedroom together. They kissed prior to entering it.
(2)As soon as the applicant and the complainant entered the bedroom, they started kissing and touching one another. The complainant did not say that she had had enough or that the applicant was not listening to her. The two of them began undressing and continued kissing and touching one another. The complainant was consenting and the applicant believed she was consenting.
(3)The applicant and the complainant engaged in consensual sexual activity. This was constituted by the applicant digitally penetrating the complainant (charge 1), the complainant giving the applicant oral sex (charge 4), and the applicant penetrating the complainant’s vagina with his penis (charge 5). The complainant consented to these penetrations and the applicant believed she was consenting to them at the time.
(4)The applicant only penetrated the complainant’s vagina with his penis on one occasion (charge 5). At no stage during their interaction did the complainant move away from the applicant or indicate that she was not consenting. The complainant was actively participating in this sexual activity which occurred between them.
[4]Filed and served pursuant to s 183 of the Criminal Procedure Act 2009.

The trial

At trial, the prosecution called 11 witnesses: the complainant; the party’s host, Hayden Nankin; five other party guests, India Anderson, Ry’annah Hack, Jaylon Smith, Rupe Kelderman and Samuel Evans; three police witnesses, Detective Senior Constable Tina Sherwood, Senior Constable Tom Durston and Detective Senior Constable Adam Stone; and a medical practitioner who examined the complainant on 2 January 2021, Dr Adam Wilson.
During the course of the prosecution case, the Crown tendered a recording of a telephone conversation between the complainant and the applicant on 12 January 2021 (‘the pretext call’); two pages of Facebook messages sent between the applicant and the complainant on 1 and 2 January 2021; various photographs of the house where the party was held; three photographs of the complainant’s clothing; three pages of Facebook Messenger messages sent by the applicant to five of his friends about what ‘happened on New Year’s Eve’; and a statement of agreed facts.[5]
[5]Agreed pursuant to s 191 of the Evidence Act 2008.
The applicant called two character witnesses: Caitlin Lynch and Georgia Kieran. He did not give evidence at trial.

Complainant’s evidence

In her evidence-in-chief, the complainant said that she finished school in 2018. She was asked whether, when she was at school, she came to know the applicant. She said she knew his name, but she did not know him.
On the night in question, the complainant’s friend, India Anderson, arrived at the complainant’s home at about 7:00 pm. They then went to Hayden Nankin’s house. It was to be a small gathering at his home because of COVID restrictions. They were going to ‘hang around at his house’.
The complainant and Ms Anderson arrived at Mr Nankin’s house at about 7:30 pm. They brought with them some vodka and lemon, lime and bitters. When they arrived, there were two other people there, Pip Lowenstein and her boyfriend, Johnno. Mr Nankin was also there, as was Aaron Kelner. These were all school friends.
The complainant gave evidence that she was drinking vodka with soda water and lemon, lime and bitters. She was measuring out shots of vodka with a shot glass, and drinking from regular plastic cups. She started drinking when she first arrived at the party.
At about 9:00 pm, Tom Lawless and Ry’annah Hack arrived. At about 10:00 pm, they were all sitting around in the backyard — ‘just drinking and chatting’. The complainant said that she had about six drinks over the course of the night.
At about 10:30 pm, ‘a few different guys arrived’: Rupe Kelderman, Isaac Laylor, Josh Allen, the applicant, Jaylon Smith and Riley Harris. They ‘just joined us’.
The complainant said that at about 11:00 pm, she and India (Ms Anderson) went to a bathroom and ‘had some cocaine’. She said it was India’s cocaine and that they had a ‘bump’. She described a bump as being ‘like a small amount of cocaine on the end of a key’. She said that she snorted the cocaine. It went into her nose. When asked how many times she did that, she said, ‘Once’, and that India did it too. She said she did not use any cocaine again that night. She said that she did not feel any different after using the cocaine. When asked whether she had used cocaine before that, she said, ‘I’m not completely sure’.
A little later in the evening, Isaac Raik-Allen arrived at the party. The complainant described him as being ‘very drunk’. He arrived with his girlfriend, Jolee. When he arrived, he walked into a glass door from the living room to the outside of the house. The complainant gave evidence that before Jaylon’s girlfriend arrived just before New Year’s, there were four women at the party.
The complainant said that, as midnight approached, they all went into a room inside the house which had a dance floor. Asked if she had made plans to kiss anyone at midnight, the complainant said, ‘Yeah, Ry’annah’. She said that they made that agreement five minutes before 12 o’clock.
The complainant said that there was a countdown to midnight and, when the countdown concluded, the applicant ‘was close by and he kissed me’. The complainant, Ry’annah and the applicant then laughed about how the applicant had stolen Ry’annah’s New Year’s kiss. Asked how it came to pass that the applicant had kissed her, the complainant said, ‘He just kind of leant in and kissed me and I kissed him back’. Asked about whether she was affected by alcohol, the complainant said:
I was pretty tipsy but like, I could remember everything and walk fine and talk fine.
…
I just felt very chill[ed].
The complainant said that, after the applicant kissed her, ‘Everyone kind of left the dance floor’, and that she and the applicant were ‘still dancing for a bit’. The complainant gave evidence that she said that they should go back outside with everyone else, but the applicant ‘suggested we go play pool’. The complainant said that while they were dancing, they were close and the applicant was ‘like touching like, my arms and waist and stuff’. She said that this did not last long — ‘Just one, like three minutes, five minutes’.
The complainant said that, after the applicant suggested that they play pool, she agreed and they then headed upstairs. The complainant was then asked whether, at that point, she was aware that there was a pool table in the house. She said she was. She had been to the house 10 or 12 times in the previous seven or eight years. Asked whether she had seen where the pool table was that evening, the complainant said:
No, they moved rooms a lot and they moved stuff around all the time ‘cause there were a lot of siblings.
The complainant said that while she had not been upstairs earlier in the evening, she had been to the upstairs part of the house prior to the night in question.
The complainant gave evidence that she had a conversation with the applicant when they got to the top of the stairs. She said:
It was the first bedroom on the right and I said I just um, I don’t want to have, I don’t want to have sex and he agreed that he didn’t want to have sex either.
The complainant said that they then went into the first bedroom on the right. Asked what happened then, the complainant said, ‘We were kissing … sitting down on the bed’.
The complainant gave evidence that she said to the applicant that they probably should not be in the room because she thought it was Hayden’s parents’ room. She did not remember if the applicant replied to this. They were kissing, and she was happy to kiss him at that stage. They continued to kiss while sitting on the bed. Asked about the size of the bed, the complainant said, ‘Like a queen bed’.
After they had been kissing for about five minutes, the complainant said that she told the applicant that she had had enough and that they should go downstairs. The complainant did not think the applicant responded to this. She again said that she did not want to have sex ‘or do anything’. She said that the applicant agreed and said ‘he didn’t want to either’.
Asked what happened after this conversation, the complainant said that the applicant kept kissing her, but that she was not kissing him back. The applicant asked her why she was not kissing him back, and she said that she had had enough and wanted to go downstairs. The complainant said that she told the applicant that she had had enough ‘quite a few times’. The complainant gave evidence that she also said to the applicant ‘I feel like you’re not listening’. Asked how the applicant responded to that, the complainant said:
He said but you kissed me at New Year’s and he said he, he just kept agreeing and saying that he didn’t want to have sex either so it was fine.
The complainant gave evidence that she said to the applicant that she thought he was not listening ‘a lot of times’. She said she told the applicant that she did not want to have sex a lot of times. She said that, at first, the applicant ‘was agreeing but like as it got later, he just wasn’t responding’.
The complainant gave evidence that she stopped kissing the applicant. The applicant ‘was agreeing [with her] … but then … he was on top of me and he … was taking off my pants but agreeing that he didn’t want to have sex at the same time’. At this stage, the complainant was lying down on the bed and not kissing the applicant back. The complainant said that she thought her legs were off the bed and the applicant was on top of her. She was then asked and answered the following questions in relation to charge 1:
So, you’ve said that you were on the bed and he started to take your pants off. When you say pants, can you explain, do you mean your jeans or your - - -?

---My jeans.
And what were you doing when he was doing that?---I was lying there and I said, I kept saying I didn’t want to have sex.
And when you were saying that, was he responding?---Yeah, he was agreeing and then, and then he put his fingers in my vagina and said um, I think you do wanna have sex because your pussy’s wet.
And what did you say?---I said that’s not how it works and I really don’t want to.
And what is the next thing that happened. Did he say anything to that?---Um, no.
When you said he put his fingers in your vagina, do you know how many fingers?---No.
What was he wearing, do you recall?---I can’t remember. I think it was just a T-shirt and jeans but I can’t remember.
And at the point that he put his fingers in your vagina, were his clothes on or off?---Um, I can’t remember.
In relation to charge 2, the complainant was asked and answered the following questions:
What’s the next thing you do remember?---Um, that he took his pants off and he was agreeing that he didn’t want to have sex as he put his penis in my vagina but he was still saying he didn't want to either.
Did you see him take his pants off?---No.
When did you notice that they were off?---Um, when he put his penis in.
And did you see his penis before he put it in your vagina?---No.
And when he did that, can you explain to the jury the position you were in, that is the physical position you were in and that he was in?---Um, he was on top of me and we were on the bed.
And in terms of positioning, was his face facing yours?---Yes.
Was there any kissing going on at that point?---I can’t remember.
So, he put his penis in your vagina and what’s the next thing you remember?

---Um, I kept saying to him I feel like you’re not listening and that I didn’t want to have sex and he was agreeing. Like, he said he didn’t want to but like while he was doing it, he was saying he didn’t want to either.
…
Do you know how long he had his penis inside you?---No.
And what was he doing with his penis inside you. Was he moving?---Yes.
In what motion?---Just like back and forward.
And how long for, do you know?---Um, I’m not sure.
So, you’re not sure how long it lasted but what happened then?---Um, um, he – um, he was getting a bit frustrated because he wasn’t staying hard and so he pulled out and was like um, masturbating.
Asked what she did at that point, the complainant said that she used her arms to ‘scoot back’. The complainant said that she pulled her body back to the other side of the bed. The applicant was masturbating on top of her. She then said that the applicant was standing, although she could not be completely sure. The complainant said that she got to the other side of the bed before the applicant pulled her legs back. She said she did that a few times and he just pulled her legs back each time towards him. She said that she thought the applicant was standing on the floor when he pulled her back towards him. She was then asked and answered the following questions about charge 3:
And what happened then?---Um, and then, and then he um, tried again. Like he, and then he put his penis back in.
So, you said he tried. Did he put his penis in you?---Yes, he did.
And how long was between when he was masturbating to him putting his penis back inside your vagina. How long was that?---Like a minute.
And what happened after he put his penis in your vagina that time?---Um, um, I kept saying I wanted to go back downstairs and I kept repeating that I felt like he wasn’t listening.
How long did that time last with his - - -?---I’m not sure.
- - - penis in your vagina?---I’m not sure.

Asked again how long this second episode of penile/vaginal penetration (charge 3) lasted, the complainant said, ‘I’m not sure’.
The complainant gave evidence that following the second penile/vaginal penetration (charge 3), the applicant ‘put me on the floor’. She said that she ‘thought like that was it. Like I thought he’d given up with it because he wasn’t getting, he wasn’t staying hard’. She was then asked and answered the following questions in relation to charge 4:
Can you please describe to the jury how that happened?---Um, um, he just put his hands under my arms and then put me on the floor.
…
All right. And on the floor, what part of your body was on the floor?---My legs.
All right, so when you say your legs - - -?---I was sitting.
You were sitting?---Yeah.
All right, so your bottom was on the floor?---Yeah.
And when you first came onto the floor was it straight onto your bottom?---I think so.
And what happened when you got to the floor?---Um, then he put his penis in my mouth.
So, at this point are you able to say whether he was wearing a condom or not?---No, he wasn’t.
…
So you said he put his penis in your mouth. How did that come about? Can you describe what happened?---Um, he just got my head with both his hands.
…
Can you describe where he put his hands?---On either side of my head.
All right, and where was he when he did that?---Standing up.
All right, and was he in front of you?---Yes.
And what did he do at that point?---Um, like he was pushing his, he was pushing my head, like, he was using his hands to push my head onto his penis.
And was your mouth open or closed?---Open.
When did you open your mouth?---Well, he kind of just jammed it in and then took it out pretty, like, pretty soon after, ‘cause I wasn’t doing it properly.
All right. When you say you weren’t doing it properly, what do you mean by that?---Um, I wasn’t giving him a blow job.
So, how long was his penis in your mouth for?---Not long, like, um, 20 seconds.
Is that an estimate?---Yeah.
And did the penis go into your mouth once or more than once?---Once.
The complainant gave evidence that, at this point, no words were exchanged between the applicant and the complainant.
In relation to charge 5, the complainant was asked and answered the following questions:
What’s the next thing that happened?---Um, he put his, um, his hand under my arms to put me on the bed.
So you say he put his hands to put you on the bed. Did he put you on the bed?

---Yes.
All right, and in what position were you at that point?---Um, just, like, lying on the end of the bed.
And was he in front of you or behind you when he pulled you onto the bed?

---In front.
So he had his hands — where were his hands?---Under my arms.
So his hands were under your arms and you say he put you onto the bed. And what did you do at that point?---Just, I didn’t do anything.
Did you remain seated or did you lay down?---I just was lying there.
And did you say anything at that point?---I don’t think so.
And what’s the next thing that happened?---Um, and then he put his penis back inside my vagina.
And where were your legs? Were they on the bed or off the bed?---On, just like on the end of the bed.
And what clothing did you have on at that point?---Um, my pants were around … one of my ankles.
When you say your pants do you mean your underwear or your jeans or both?

---Both.
The complainant was asked what happened at the point when the applicant put his penis in her vagina. She said, ‘I was crying’. She then said that she heard Isaac Raik-Allen.[6] She said that he must have been locked out at the front of the house because she could hear him yelling for someone to let him back in, and so ‘I started to yell out to him’. She said that while she was yelling out to Mr Raik-Allen, the applicant still had his penis in her vagina. After that, the complainant said that she heard girls’ voices and she thought it might be India or Ry’annah. She said:
And so I was yelling out, India, and then he put his hand over my mouth but I still yelled, like I was still trying to yell, India.
[6]The late arrival to the party who had walked into the glass door earlier in the night.
The complainant was then asked and answered the following questions:
So … when you started yelling her name, did he respond in any way?---Yeah, he said India told, India told me that she really wanted you to do this.
Did he say anything else?---Um, I don’t think so.
And did you respond to that?---I just kept yelling, India.
So, you said that you started yelling her name out and then he put his hand on her mouth and then said, India told me that she really wanted you to do this, is that the right sequence or can you - - -?---He put his hand on my mouth.
Sorry, I got that bit wrong. I apologise but I’m just trying to get the sequence right. So, you said you thought you could heard [sic] India?---Yeah.
And then what’s the next thing that happened. Was it the hand over the mouth or he told you about India?---Um, no, I yelled out to India and then he put his hand on my mouth and then he said, said that India wanted me to do that and that India was really happy.
And what’s the — so, you said he covered your mouth. How did he do that?

---With his hand.
And do you know which hand it was?---His left hand.
The complainant gave evidence that all of this occurred while the applicant still had his penis inside her vagina. She was asked and answered the following questions:
And what was going on in respect of that?---Um - - -
Was he moving?---Yes.
...
Was it slow or fast?---Not sure.
Did you do anything apart from keep trying to yell out, India when he put his hand over your mouth?---No.
So, you said you thought that it was India. What happened after he had put his hand over your mouth?---Um, after a little while, like a few minutes um, I could still hear like girls’ voices and then um, India knocked on the door and then just came in so like knocked and came in straight away and um, [the applicant] jumped up and said to India, I don’t know why she’s crying um, and India was just telling him to leave.
Did he say anything else?---He was saying this makes me look really bad.
And did you say anything at that point?---I was just crying.
The complainant gave evidence that she was still on the bed at this point. Once India walked into the room, the applicant was pulling his pants up. He then left the room — about 30 seconds after India walked in. The complainant said that she ‘just lay there’. Ry’annah then came in, and the complainant put her clothes back on. She was then asked and answered the following questions:
Did you all stay in the room together for some time or not?---Um, Ry’annah went straight back downstairs, um.
And so, you were in the room with India?---Yes.
And then what happened?---And then we went downstairs together and all the boys had gone.
When you say all the boys were gone, were there still a couple of people left?

---Hayden um, and he was just pacing, um and he gave me a hug and Aaron Kelner was still there but that was it.
And did you leave the party shortly thereafter?---Yeah.
And that was about 1.40 in the morning, was it?---Yeah.
The complainant gave evidence that she then went home with India. She told India what happened. When asked whether she remembered what she told India, she said that she did not. The complainant said that India stayed at her house for about half an hour. India then left, and the complainant went to bed.
The complainant gave evidence that she reported the matter to police at about 11:00 pm on 1 January 2021. She initially spoke to a police officer before two other detectives became involved. An arrangement was made for her to go to the Royal Melbourne Hospital, where she underwent a medical examination that night.
In the course of her evidence-in-chief, the complainant identified a Facebook message which she sent to the applicant at 4:03 pm on 1 January 2021 as follows:
What you did last night was so messed up and I don’t understand how you thought that was okay. I said I didn’t want to have sex so many times and I told you to stop repeatedly and you ignored me and covered my mouth when I tried to yell for India. A new years kiss is NOT consent, You are genuinely a fucked up person and I hope you never do that to another girl ever again. For you it was one night but for me I will remember that horrible experience for the rest of my life.
The complainant also identified the three responses she received to this message from the applicant (the first two being sent by the applicant on 1 January 2021, with the third having been sent at 9:02 am on 2 January 2021). The three responses were as follows:
[Bev][7] I’m so sorry if you thought I was doing that to you. I genuinely thought you were fine with everything that happened between us. Could I please call you to talk about it. I genuinely feel horrible and didn’t mean to put u in that situation or feel that way
…
I feel sick readying (sic) that message. I’m sorry for putting you in this position and I hope you’re okay
…
Hi [Bev] I hope you’re ok. I feel absolutely horrible for hurting you, I never wanted any of this to happen. At the time I thought we were drunk and having a good time. I’m going to respect that you probably don’t want to talk to me right now. Hopefully we will be able to talk when the time is right.
[7]A pseudonym.
On 5 January 2021, the complainant went back to the police station to make her police statement. Police spoke to her about making a phone call to the applicant (the pretext call). The pretext call occurred on 12 January 2021.
The complainant was cross-examined over three days. The topics of cross-examination included: the complainant’s drug use (both prior to and at the party); the reason the complainant went upstairs with the applicant; how the complainant came to be lying on the bed; the circumstances in which the complainant and the applicant kissed; how the complainant’s clothes came off in the bedroom; whether the applicant ejaculated; the circumstances of each of the penetrations about which the complainant had given evidence; whether the oral penetration occurred while the complainant was on the bed or sitting with her bottom on the floor or on her knees on the floor; whether the complainant was pushed by the applicant onto the bed; and the complainant’s level of intoxication on the night.
On each topic, it was put to the complainant that she had given different and/or inconsistent versions of relevant matters and events at various times. Comparisons were drawn by the cross-examiner between the complainant’s account to police at the St Kilda Police Station on 2 January 2021; the complainant’s history given to Dr Wilson during the course of the medical examination on 2 January 2021; the complainant’s police statement (‘Police Statement’) made on 5 January 2021 at the Bayside Police Station; the evidence given by the complainant at committal; and the evidence given by the complainant at trial. Differences were also identified between the complainant’s evidence and the evidence of other witnesses.
On multiple occasions during the cross-examination, it was put to the complainant that she had lied in the various accounts she had given prior to trial and/or had lied during the course of her evidence at trial.
Notwithstanding the attack made on her various accounts and evidence during the course of cross-examination, the complainant maintained that her evidence was truthful. There was no concession by her that she had lied in respect of any of her evidence concerning the critical events which occurred at the party. At best for the applicant, there were concessions made by the complainant that:
(a)she could not remember having said some of the things which were put to her;
(b)she could not understand why she would have said particular things which she had apparently said on earlier occasions; and
(c)if she had said some of the things which were put to her (particularly in relation to her drug use), then that would have been a lie.
While the complainant accepted that, if she had said certain things (which the cross-examiner later demonstrated had been said by her) then that would have been a lie, the complainant still maintained (in the face of this cross-examination) that she was not lying, and did not lie, in her evidence at trial.
It is not necessary to identify all of the inconsistencies and lies asserted by the applicant’s counsel during the course of his cross-examination of the complainant. Many of the asserted lies and inconsistencies are contestable, and were in fact contested at trial. It is sufficient for present purposes to identify the following matters referred to in cross-examination.
In relation to the complainant’s drug use at the party:
(1)The cross-examiner put to the complainant that her evidence that she only had ‘one bump’ of cocaine at the party ‘was a lie’. The complainant denied that proposition. It was then put that her evidence that she only had one bump because the person who gave it to her said that it was too expensive was also a lie. This, too, was denied by the complainant.
(2)It was put to the complainant that she lied in her Police Statement when she said that the person who gave her the cocaine did not want her to have any more; and that she also omitted to tell police that she was talking about Ms Anderson.
(3)It was put to the complainant that, in saying in her Police Statement that she had never tried cocaine before, she lied. In response, the complainant said that she was ‘not really sure’. The complainant’s evidence at committal that she had tried cocaine once or twice six months before the party was then put to her. The complainant said that evidence was truthful and that she could not remember why she said in her Police Statement that she had never used cocaine before. She also said that she was ‘not completely sure’ if she had or had not used cocaine before the party.
(4)It was put to the complainant that she told the first police officer that she spoke to at the St Kilda Police Station that she had not used any drugs at the party. In response, the complainant said, ‘I don’t know why I said that’. The complainant conceded that, if she had said that she did not take any drugs at the party, then that would have been ‘a blatant lie’.
(5)It was similarly put to the complainant that she told Dr Wilson that she had not used any drugs. The complainant responded, ‘I don’t remember’. Again, the complainant accepted that if she had told a doctor that she had not used drugs at the party, then that would have been ‘a blatant lie’.
In relation to the complainant’s reason for going upstairs with the applicant:
(1)It was put to the complainant that her evidence that they went upstairs to play some pool was a lie. The complainant denied that allegation.
(2)It was put to the complainant that, because she had been at the house 10 or 12 times before, she well knew that there was no pool table upstairs, and that her evidence that the pool table may have been moved upstairs was also a lie. The complainant responded, ‘I just know that they would move stuff so I wouldn’t have been surprised if it was upstairs’. The complainant denied that she and the applicant went upstairs ‘to be intimate with one another’.
(3)The complainant was asked about telling police at the St Kilda Police Station that the reason she and the applicant went upstairs was ‘to see the others’. The complainant said that she did not remember saying that.
In relation to how the complainant came to be lying on the bed in the upstairs bedroom:
(1)The complainant was cross-examined about whether she had ever told anyone that the applicant had ‘pushed’ or ‘forced’ her onto the bed. She accepted that, if she had ever said that, that would have been a lie. It was then put to her that that was the version she gave at the St Kilda Police Station. In response, she said, ‘I don’t remember that St Kilda Police Station statement at all’.
(2)The complainant agreed that she went to the bed ‘willingly, consensually’, ‘of [her] own free will’ and ‘quite happily’.
In relation to the circumstances in which the complainant’s clothes came off in the bedroom:
(1)The complainant was cross-examined about having said that the applicant took her jeans off while he was lying on top of her. She said that ‘He was over me, but I don’t remember how he took them off … I know he used his hands’. A little later, the complainant said that the applicant was ‘standing at the side of the bed to pull my jeans down’. The complainant then denied that she had given evidence that the applicant was lying next to her when her jeans came off.
(2)It was put to the complainant that the ‘honest answer’ to the question of how her jeans came off was that she took them off herself. The complainant denied that proposition.
(3)The complainant was asked and answered the following question:
Well the only reason you’re saying that you didn’t take your underwear off is because you know that that doesn’t suit your story? If you have no memory of it you can’t say one way or another whether you took them off or not, can you?---It’s not that I have no memory of it, I just can’t remember how he took them off. Or at exactly what point he took them off.
(4)It was put to the complainant that it would have been impossible for the applicant, with his body on top of the complainant’s body and both of them on the bed, to take her pants ‘all the way down off one leg completely and around the ankles of another leg … and her underpants off one leg completely and around the ankle of another leg’. The complainant agreed with that proposition.
In relation to the complainant’s evidence about digital penetration (charge 1):
(1)It was put to the complainant that she took her clothes off voluntarily so that the applicant ‘could have access and be able to touch [her] vagina’. The complainant said, ‘That’s not true’.
(2)It was put to the complainant that, ‘Even on [her] version of events’, when her pants and underpants were removed, she did not do anything physically to stop that happening. The complainant agreed. She also agreed that she did not call out for anyone when her pants and underwear came off. However, she then said, ‘No, but I was saying I didn’t want to have sex’.
(3)When cross-examined about how many fingers the applicant inserted into her vagina and whether it was a finger or more than one finger, the complainant said, ‘I’m not sure’. Again, she agreed that she did not do anything physically to stop that happening and did not call out at that stage to anyone.
(4)When asked about how long the applicant’s fingers were in her vagina, the complainant said, ‘He just put his fingers in and then took them out’. The complainant agreed that the applicant just put them in ‘that one time which went for [a matter of] seconds’. It was then put to her that she had told Detective Rowe that the applicant had put his fingers in her vagina ‘on and off for 30 to 40 minutes’. Asked if she could remember saying that to Detective Rowe, the complainant said, ‘I really can’t remember … that interview at all’.
In relation to the complainant’s evidence about oral penetration (charge 4):
(1)It was put to the complainant that her evidence was that the applicant had placed her on the ground, with her bottom on the ground. She was asked whether she had a clear memory of this. She responded, ‘Um, I’m pretty sure, I was on the ground’. It was then put to her that she had told Detective Rowe that, at the time the applicant had put his penis in her mouth, she was lying down on the bed. The complainant said that she did not remember that.
(2)It was put to the complainant that the version she had given Detective Rowe was of a ‘completely different position to the one [she had] described to the jury’. The complainant said, ‘I’m really sorry but I don’t remember that interview … at all. I know that’s not helpful’. In answer to the proposition that she had told police that she and the applicant were ‘lying in bed together’, she said, ‘I feel like I wouldn’t have said that’. Asked whether she could explain the difference in these versions, the complainant said, ‘No, I can’t explain it’.
(3)It was subsequently put to the complainant that she had in fact given a third version of the oral penetration. That version (contained in her Police Statement) was that, at the time the applicant’s penis went into her mouth, the complainant was on her knees on the ground. When asked which version was correct, the complainant said that she was on the ground, but that she could not remember whether she was sitting down or on her knees.

In relation to her level of intoxication on the night:
(1)It was put to the complainant that her evidence-in-chief that she was ‘pretty tipsy’ was inconsistent with what she told Dr Wilson: namely, that she had had some alcohol but was not intoxicated. The complainant said that she did not remember saying that to Dr Wilson. She accepted, however, that if she had told Dr Wilson that, then it would have been a lie.
(2)It was put to the complainant that her evidence-in-chief that she was ‘walking fine’ was inconsistent with her Police Statement, in which she had said that she was ‘[not] walking fine’ and was ‘wobbly’. The complainant accepted that that was what she had said in her Police Statement. She said, ‘I might have been a bit wobbly up the stairs’.
Having cross-examined extensively on the topics to which we have referred, counsel for the applicant then cross-examined the complainant generally as to the circumstances of what occurred between the applicant and the complainant at the party. In the course of doing so, it was put to the complainant that the complainant took her clothes off voluntarily so that the applicant could have access to and be able to touch her vagina; consented to the applicant digitally penetrating her vagina; decided that she would suck the applicant’s penis; willingly and consensually sucked the applicant’s penis when both of them were on the bed; and later placed the applicant’s penis in her vagina, using her hand to assist his penis going into her vagina. The complainant rejected all of these assertions.
In re-examination:
(1)The complainant gave evidence that when her Police Statement was taken, she was not asked for the name of the person who gave her the cocaine. She also said that, if she did not tell anyone at the hospital whether she had taken drugs, it was because she did not want to get into trouble.
(2)When asked about her evidence of being pushed by the applicant onto the bed, the complainant said, ‘It wasn’t forced … it was pushed but it wasn’t in an aggressive way at all’.
(3)When asked about her evidence of them (the applicant and the complainant) lying on the bed when her jeans were removed, the complainant said that the applicant was positioned ‘over the top of me … he wasn’t laying flat on top of me. He was leaning over the top of me and using his hands to take off my pants’.
(4)When asked why she did not stand up or attempt to put her clothes on before the applicant sexually penetrated her, the complainant said, ‘[Be]cause I felt like if I just explained … that I didn’t want to, that he would listen and he’d understand’.

India Anderson’s evidence

Ms Anderson gave evidence that she arrived at the party with the complainant at some time after 5:00 pm. They brought alcohol to the party. Asked when she started drinking, Ms Anderson said, ‘I would say after, whenever I arrived, I would’ve started drinking, I did start drinking’. Asked whether she was able to say whether she was drunk or not at about 10:30 or 11:00 o’clock that evening, Ms Anderson said, ‘I wasn’t too drunk at that point in time I don’t believe’.
Ms Anderson gave evidence that she used cocaine at the party ‘between two and a few times, but I can’t actually recall exactly how many times’. Ms Anderson said that she shared cocaine with the complainant. Ms Anderson said that she (Ms Anderson) had ‘more than one bump’. She gave evidence that she used cocaine more than the complainant on that night.
Ms Anderson gave evidence that she could not remember where the complainant was at midnight. Everyone was inside in the loungeroom where the music was playing. Ms Anderson said she believed that, after midnight, the next time she saw the complainant was in the bedroom.
When asked how she came to be in the bedroom, Ms Anderson said that at some stage after midnight she asked her friend, Ry (Ms Hack), if she had seen the complainant. Ms Hack directed Ms Anderson to go upstairs. Ms Anderson asked Ms Hack if the complainant was with the applicant, ‘because someone at the table had previously asked where he was, so there was two people missing at that time, so I made an assumption that they could have been there together’.
Ms Anderson said that she and Ms Hack went upstairs ‘to figure out where [the complainant] was’. Ms Anderson said that they ‘sort of crept because we weren’t sure what was happening inside the bedroom … and we’re just sort of listening out for anything … and we could only sort of hear, I guess, muffled sounds’. Ms Anderson said that she and Ms Hack were listening for about 10 to 20 seconds ‘when we noticed that she [the complainant] was crying … we noticed she was definitely crying’. Asked what she did next, Ms Anderson said:
I walked in, or I knocked on the door ... and no-one came to the door, so I opened it — I think I may have given it a couple of seconds, but then I opened the door to check on my friend.
Ms Anderson said that when she opened the door, she saw the complainant on the bed ‘pants off’. Ms Anderson described the complainant as lying back on the bed with her knees bent. Ms Anderson said that she could not see the bottom half of the complainant’s legs — she could only see the top half because they were on the bed. Ms Anderson said that the complainant had clothing on the top half of her body. Ms Anderson then described the applicant as ‘just standing up’ where the complainant’s legs were. The applicant said ‘something along the lines of’:
Oh, she’s, she’s just started crying as soon as you’ve walked in. You know how bad this looks on me.
Ms Anderson gave evidence that, in response to what the applicant said, she believed she said to him, ‘Please get out, please get out’. Asked whether the applicant was wearing anything, Ms Anderson said, ‘I could see his penis but he was trying to pull his pants up, so he was like trying to, you know because obviously, I had just walked in’. The applicant then ‘came over and sort of like grabbed me … I remember he touched me and I remember feeling like wet on his fingers as well’.
Ms Anderson said that, ‘pretty much straight after’, the applicant left the room . At that time, the complainant was on the bed ‘crying pretty full on, pretty hysterically’. Ms Anderson said that she stayed in the bedroom for 20 to 30 minutes. She and Ms Hack were comforting the complainant and making sure that she was okay.
Asked about the complainant’s level of intoxication, Ms Anderson said that the complainant had been ‘a little bit drunk earlier on in the night’, but that they (the complainant and Ms Anderson) ‘weren’t … like drunk for the rest of the night’.
In cross-examination, Ms Anderson was taken to her statement in which she had said that both she and the complainant were ‘quite drunk … at around eight o’clock’. She was also taken to another part of her statement where Ms Anderson had said that she and the complainant had had ‘a couple of bumps of coke’. Ms Anderson did not dispute the contents of her statement.
Ms Anderson was also taken to a part of her statement in which she had said that, when listening at the bedroom door, she thought she heard ‘the sound of sex noises’. Ms Anderson agreed that she and Ms Hack thought it could have been sex noises, but then denied that what she heard was consistent with two people having sex. After further cross-examination, Ms Anderson agreed that what she and Ms Hack initially heard sounded like sex noises, but after a further 20 seconds or so, Ms Anderson believed that she heard the complainant crying.

Hayden Nankin’s evidence

Mr Nankin gave evidence that the party was held at his family home where he lived with his parents and siblings. He invited between 10 and 20 people, including the complainant and the applicant. His family was not home on the night in question. The party was held in the downstairs part of the home and also in the backyard. There was a room set up where music was playing.
Mr Nankin gave evidence that, on the night in question, he was drinking. Asked about whether he felt drunk or intoxicated at around midnight, he said, ‘I felt fine. I didn’t feel like, alcohol persuaded me to do anything or feel any way or act that way’. Asked whether he was affected by alcohol, he said, ‘Some effect’. Mr Nankin gave evidence that, on the night, he used cocaine. He said that, at about midnight, he was not feeling the effects of that cocaine.
Mr Nankin gave evidence that he recalled seeing the applicant on the dance floor at midnight. He saw the applicant and the complainant kiss. Asked whether he had any concerns about that, he said, ‘It caught me by surprise but no concerns at all’.
Mr Nankin gave evidence that all the bedrooms were upstairs, and that the house contained a pool room which was downstairs. He identified a pool table in the pool room which he said was in the same position on the night of the party.
Mr Nankin was asked whether, at some point after midnight, he recalled seeing the applicant again. He said that he saw the applicant standing outside, looking ‘a bit distressed’. Mr Nankin said that the applicant ‘was sort of pacing a little bit and … just had a very anxious kind of look on his face that made [him] realise something was wrong’. He asked the applicant what was wrong. The applicant replied that all the girls were going to hate him and that he had ‘really fucked up’.
Mr Nankin gave evidence that, after comforting the applicant for a short time, he saw Ms Hack ‘run downstairs in hysterics’. He then followed Ms Hack upstairs into the bedroom, where he saw the complainant and Ms Anderson. He said that the complainant was crying and that ‘she was in a really bad way’. Mr Nankin gave evidence that he went into the bathroom of the house and found the applicant’s underwear. He then said that he did not find the underwear, ‘Someone else had found it but I collected it’. Asked what he did with the underwear, Mr Nankin said, ‘I burnt them’.
In cross-examination, it was put to Mr Nankin that, the first time he (Mr Nankin) had ever said that the applicant had said to him, ‘I’ve really fucked up’, was in his evidence-in-chief. He had not said this in his police statement, nor to any police officer prior to trial, nor at the committal when he had taken the opportunity to amend other parts of his statement. It was put to Mr Nankin that the reason these words were not in his statement was because the applicant never said them. Mr Nankin disagreed.
In cross-examination, Mr Nankin agreed that the pool table had been in the same downstairs poolroom in the years leading up to the incident, and on each occasion the complainant had attended at the house prior to the night of the party. Finally, it was suggested in cross-examination that if Mr Nankin had burnt any underwear, that underwear did not belong to the applicant. Mr Nankin replied:
I don’t know who else’s underwear it could possibly have been.
…
I don’t think anyone else left their underwear that night.

Ry’annah Hack’s evidence

Ms Hack gave evidence that when she arrived at the party, people were drinking alcohol. At the party, she drank Smirnoff Double Blacks which she had brought to the party. She said that, during the evening, she ‘felt tipsy’.
Ms Hack gave evidence that there was a dance floor area. Leading up to midnight, there was a countdown. Ms Hack said that she and the complainant had ‘previously agreed that we’d be each other’s new year’s kiss’. However, when she turned to kiss the complainant, she saw that the applicant had kissed her. She said, ‘It rubbed me the wrong way because it was almost forcefully on her, like it took her back as though it was unexpected for her to be kissed by him’. Ms Hack said that the next thing she remembered was walking upstairs to get a phone charger or another drink. She said she walked past one of the doors and heard ‘muffled no’s’. Asked how long it was after seeing the applicant and the complainant on the dance floor that Ms Hack found herself upstairs, Ms Hack said, ‘I remember it as a couple of hours but I don’t have a specific timeframe’. Ms Hack said:
So, I heard muffled no’s and um, almost moaning and it caught me off guard so I went a little closer to the closed door to just check in to see what, I mean to hear closely what I had previously heard and it didn’t sound right to me. Um, so I thought um, and the, I could tell that the voice was [the complainant’s].
Ms Hack gave evidence that she went to find Ms Anderson. She told Ms Anderson that she thought she had heard the complainant in the bedroom and that she had a suspicion that the complainant was with the applicant. Ms Hack said that Ms Anderson then went upstairs, but that she (Ms Hack) remained downstairs. Shortly thereafter, Ms Anderson came running down the stairs, saying that the complainant was not okay. Ms Hack and Ms Anderson then both went upstairs, where Ms Hack saw the complainant ‘crying, with her pants down and no undies on saying that, she was saying no’.
Ms Hack gave evidence that she asked the complainant, ‘Who did this, what happened?’. The complainant said that it was the applicant and that ‘it was hurting a lot’. Ms Hack said that she got a towel, put some cold water on it and told the complainant to put the towel ‘where it hurts’.
Ms Hack gave evidence that she saw the complainant’s pants (jeans) and her underwear ‘were like down on her ankles’. The complainant told Ms Hack that the applicant had put his hand over her mouth. Ms Hack gave evidence that she ‘thought that made sense since [she] heard muffled no’s through the door’. Ms Hack gave evidence that she used cocaine at the party. She could not remember exactly when or how many times. She said, however, that when she went upstairs looking for the phone charger, her state of sobriety was ‘tipsy’.
Ms Hack was cross-examined about differences between her evidence and her police statement. A considerable amount of this cross-examination was dedicated to her having said in her statement that ‘[The complainant] had her pants down … she was sitting on the bed with her underwear off and no pants on’; whereas, her evidence was that the complainant’s pants and underwear were ‘around her ankles’.
Ms Hack was cross-examined about not telling the informant (DSC Stone) about her use of cocaine at the party. Ms Hack said, ‘It didn’t cross my mind’.
It was put to Ms Hack that Ms Anderson’s first impression of what they heard coming from the bedroom were ‘sex noises’. Ms Hack disagreed, saying that her first impression was of hearing moaning and muffled no’s.

Jaylon Smith’s evidence

Mr Smith gave evidence that he arrived at the party at 10 or 11 o’clock, ‘pretty close to midnight’. He had been drinking alcohol since lunchtime, and using cocaine. He said he ‘wasn’t necessarily sloshy or like I was still in a fair state of mind’. Mr Smith gave evidence that, at some time after midnight, when he was outside, the applicant came outside and tried to explain that something had happened. Mr Smith said that he was trying to socialise and talk to everyone else and he ‘sort of just blew it off’.
Mr Smith gave evidence that, some hours later, he had a conversation with the applicant. The applicant told him that he and the complainant had been kissing for New Year’s Eve, when he had asked her if she wanted to go upstairs. Mr Smith gave evidence that the applicant told him that the complainant agreed and said, ‘Yes, but I don’t wanna have sex’. Mr Smith was asked and answered the following questions:
And she, [the applicant] told you that she said that she didn’t want to have sex, is that right?---Yeah, he, he had asked her if she wanted to head upstairs. She said yes but they, they both agreed not to have sex, yeah.
And what’s the next thing that happened?---Um, I’d interjected and said um, if yous had both agreed not to have sex, then why did you. Um, he had said because ah, they were kissing, hooking up. He was fingering her and he thought she’d changed her mind and I said like, what made you think that she’d changed her mind. He said that she was enjoying him fingering her and ah, um, why would you do all that other stuff if you didn’t want to have sex. I had said like, you can do all the other stuff and not have to have sex and he said that like he thought that she had changed her mind again.
Yes, and did you reply to that?---Um, yeah, and then I told him to continue his story. He had said that um, and so that they were hooking up. He was fingering her and then he had slipped it in and I’d interjected again and said, ‘What do you mean you slipped it in?’. Um, he had said she was into it. I’d said um, ‘How do you know – like, did she say that?’. He said, ‘I could just tell. Why would she let me finger her and do all that other stuff if she didn’t want to have sex’. Um, yeah, and then, then he also ah, said um, that they were having sex for a while and when she or when he slipped it in, she didn’t say anything and they were having sex for a while and she hadn’t said anything and then right before that he was about to cum ah, she started freaking out. He said, ‘Right before I’m about to cum, can you believe that man. Um, like that’s fucked’.
Mr Smith gave evidence that he asked the applicant about whether he had put his hand over the complainant’s mouth, to which the applicant responded:
Nuh, I don’t know, I don’t think so, maybe.
During the course of Mr Smith’s evidence, three pages of Facebook Messenger messages, sent on 11 February 2021, were tendered. In those messages, the applicant said that he wanted to meet up to talk about what happened on New Year’s Eve. He said that he did not think it was fair that his reputation ‘gets ruined by false accusations’. Mr Smith gave evidence that he (together with Rick Jacobsen and Mr Kelderman) subsequently met with the applicant at a park in St Kilda. At that meeting, the applicant told them that the complainant ‘had no longer said that she didn’t want to have sex and that they [the applicant and the complainant] didn’t agree on that in the hallway’.

Rupe Kelderman’s evidence

Mr Kelderman gave evidence that he arrived at the party at around 9:00 pm. He had been drinking, ‘a lot’. There were other people at the party. He had no ‘clear’ recollection of what happened at midnight. At some point he passed out. He had a vague memory of his girlfriend at the time (Ms Anderson) being ‘a little bit upset’ with him.
After he woke up on New Year’s Day, Mr Kelderman spoke to, and exchanged texts with, the applicant. The applicant told him that he and the complainant had been kissing and that they had agreed not to have sex. Mr Kelderman gave evidence that the applicant told him that he and the complainant went upstairs and that ‘he [the applicant] started fingering her and then he just slipped it in’.
In cross-examination, Mr Kelderman agreed that he had sent the applicant a text in which he said, ‘[The complainant] [is] a liar’.
Mr Kelderman gave evidence of further communications between himself and the applicant. The gravamen of this evidence was that, in communicating with Mr Kelderman, the applicant maintained that he did not believe that he had done anything wrong.

Samuel Evans’ evidence

Mr Evans gave evidence that he arrived at the party sometime after 10:00 pm. He had been drinking since 6:00 pm and had had 10 to 12 stubbies of beer. He also gave evidence that he had ‘two lines’ of cocaine. As to whether he was affected, he said, ‘I’m fine. I mean obviously … drunk as you’d assume but can walk, talk, everything else is fine’.
Mr Evans gave evidence that he saw the applicant kissing the complainant at midnight. He noticed the complainant going upstairs, but he then said that he ‘didn’t take good enough notice to be able to tell whether it was [the applicant] or [the complainant]’. He assumed that the applicant went upstairs with the complainant.
Mr Evans gave evidence that at about 12:30 am, the applicant came downstairs to the outside area. He said that the applicant:
… walked outside and looked a bit shocked, flustered. I remember him having his hands over his head like he was stressing about something. And so, yeah, I went up and asked him if he was all right and the first things he said to me were ‘I fucked up, I fucked up, I know how this shit goes’. Um, ‘I’m going to gaol’.

In cross-examination, it was put to Mr Evans that he made his police statement approximately 18 months after the party, when he was asked to cast his mind back to a night when he was drunk and drug-affected. He was then asked if he would concede that there was a possibility that he may have got things wrong in his recollection about the conversation he had with the applicant at the party. Mr Evans responded, ‘No, not with me, not with what was said to me’.
Mr Evans was further cross-examined about his statement and his evidence at the committal. In the course of cross-examination, Mr Evans agreed with the proposition that the applicant had always denied to him that he (the applicant) had done anything wrong. That was then qualified by reference to another question asked at committal, so that Mr Evans’ position appeared to be that, other than in their conversation at about 12:30 am at the party, the applicant had always denied that he had done anything wrong.

Senior Constable Durston’s evidence

SC Durston[8] gave evidence that he was on duty on the evening of 1 January 2021 at the St Kilda Police Station. At about 10 minutes before midnight, the complainant came into the police station to report a sexual assault. SC Durston took her to a ‘soft interview room’, where he then made notes of their conversation. Later, he passed the complainant’s account along to DSC Rowe.[9]
[8]The transcript of the trial records Mr Durston as giving his rank as ‘Constable’ in evidence in chief. In answer to a direct question about his rank at the start of his cross-examination, however, he said that he was a Senior Constable.
[9]DSC Rowe was then attached to the Knox Sexual Offences and Child Abuse Investigation Team.
In cross-examination, SC Durston agreed that his notes of his conversation with the complainant contained the following:
Got there at 7 pm on 31/12/2020 to a friend’s house ... for a New Year’s Eve party.
…
Everyone was tipsy.
…
It was getting close to 12 o’clock. The countdown happened and this guy [the applicant] approached me, came up and kissed me on the lips.
I kissed him back. I’ve never talked to him before but he went to the same school as me. Me and [the applicant] were together on the inside dance floor and we went upstairs to see the others and no-one was there.
[The applicant] took me to a bedroom and closed the door and pushed me on the bed. [The applicant] is a large build.
I said straight away I really don’t want to have sex. I said I don’t know you and I am too drunk and he agreed and said he did not want to have sex either.
He said he was drunk. He started kissing my lips … and I wasn’t kissing him back.
I kept saying I don’t want to have sex and he was agreeing but he was taking off my pants.
He used his fingers, then said ‘Your pussy is wet. I think you do want to have sex’. I further said I didn’t.
Then he took off his pants while he had his arm on my shoulder while I was laying backwards on the bed.
I kept saying I don’t want to have sex. He kept agreeing while he was inserting his penis inside me. I started yelling out to India so he put his hand on my mouth.
India walked [in] and [the applicant] pulled out [pulled his penis out of the complainant’s vagina].
And he [the applicant] said, ‘She just started crying, that’s so weird’. India told him to get out.
It seemed to go on for a long time while he kept losing erection and would then get on top of me and put his penis in my mouth.
Then he jumped up and said, ‘This makes me look bad’.
He then left the room, went downstairs and that group of boys left. I was upset and put my clothes back on.
…
No drug taken. One person there maybe did it. Intoxicated but clear recollection of what happened.
SC Durston said that after he finished speaking with the complainant, he contacted DSC Rowe. DSC Rowe directed him to have the complainant wait in the foyer of the St Kilda Police Station. SC Durston passed on the complainant’s phone number to DSC Rowe, and DSC Rowe then called the complainant.

Detective Senior Constable Sherwood’s evidence

On the night of 1–2 January 2021, DSC Sherwood was attached to the Knox Sexual Offences and Child Abuse Investigation Team (‘SOCIT’).
DSC Sherwood gave evidence that she first learned of the matter involving the complainant at 12:36 am on 2 January 2021 when she was notified that the complainant was coming into the St Kilda Police Station. Her partner, DSC Rowe, had by then spoken to the complainant on the phone. DSC Sherwood and DSC Rowe then went to the Royal Women’s Hospital, where they met the complainant.
DSC Sherwood took photographs of the complainant’s clothing which were tendered at trial.
In cross-examination, DSC Sherwood was asked whether she obtained a version of events from the complainant at the hospital. DSC Sherwood said, ‘No, that version of events was taken [by] Detective Senior Constable Rowe’.

Dr Wilson’s evidence

In January 2021, Dr Wilson was a forensic medical registrar employed by the Victorian Institute of Forensic Medicine. At 3:30 am on 2 January 2021, he conducted a medical assessment and examination of the complainant at the Royal Women’s Hospital. He took a history from the complainant. He said:
I was told that the patient was at a New Year’s Eve party at someone’s house, that she had been kissing a male there who she knew, dancing with the male. They went into a bedroom together and that she told him she didn’t want to have sex. She said that the male penetrated her vagina with his fingers, then penetrated her vagina with his penis and she described that as rough. Then there was penetration of the mouth with the penis and then there was further penetration of her vagina with the penis. She said that she was trying to call out but he held his hand over her mouth and that he only stopped when other people entered the room and interrupted.
Dr Wilson gave evidence that the complainant also told him that no condom was worn by the male and that there was no ejaculation. He said he obtained forensic specimen samples which were then bundled up and given to DSC Sherwood to be taken to be examined by DNA experts. The complainant having given a history that there was no ejaculation,[10] Dr Wilson was asked and answered the following question.
Now, in terms of whether there has been ejaculation or not and whether there would be sperm present on the examinations once they are conducted, if penile/vaginal intercourse has occurred and a male does not ejaculate, is it possible for sperm to be found in the vagina on those swabs?---Yes, it’s still possible, ah, simply because there can be pre-ejaculatory fluid which may contain spermatozoa, it may not, and of course, there may be no pre-ejaculatory fluid but it is certainly possible.
[10]An issue disputed by the applicant during the pretext call.
Asked about whether the complainant appeared to be affected by alcohol, Dr Wilson said that he did not recall specifically, but that his notes indicated that she did not appear to be under the influence of any alcohol or substances at the time of his examination.
Dr Wilson said he conducted a genital examination and did not identify any anogenital injuries. He said that this was ‘the most common finding’, whether sex had occurred consensually or in the course of an assault.
Dr Wilson was asked about whether he took any history from the complainant about alcohol consumption or drug taking. He said that his notes recorded that the complainant indicated that she had consumed alcohol at the time of the assault, but that she did not feel intoxicated. His notes said nothing one way or the other on whether she had consumed drugs. Dr Wilson said that he could not recall if he had asked the complainant about drugs.
In cross-examination, Dr Wilson was asked whether it would have been his normal practice at the time of the examination to ask the person being examined whether they had used drugs or alcohol at the time of ‘the incident’. He said, ‘Yes … I would’ve asked’.
Dr Wilson gave evidence that he had ticked a box marked ‘alcohol’ in his notes, but left the box for drugs unchecked. It was put to him that this indicated that, when he asked the complainant whether or not she was using drugs, she told Dr Wilson that she had not used them. Dr Wilson responded:
I honestly can’t recall, so I couldn’t say with certain[ty] that I asked specifically about drugs. It either means I left that part out or that she indicated no drug use.

Detective Senior Constable Stone’s evidence

In 2021, DSC Stone, the informant, was attached to the Bayside SOCIT.
DSC Stone gave evidence that, on 2 January 2021, he received a briefing from the Knox SOCIT office in relation to an allegation of rape the night before arising from the address at which the party was held. He received documents relevant to the case, and collected the forensic medical examination kit and some clothing belonging to the complainant. He sent the forensic medical examination kit to the scientific arm of the police to have it examined for DNA.
DSC Stone said that he first met with the complainant on 5 January 2021 at the Bayside Police Station. He sat down with her at a computer and asked her to detail what had happened on the night. He entered what she said directly into the computer. Once she had finished detailing the events, the complainant’s Police Statement was printed. She read it to confirm that it was correct and then signed it. After the Police Statement had been produced, he had a discussion with the complainant about having a telephone conversation (the pretext call) with the applicant. The pretext call occurred on 12 January 2021.
DSC Stone gave evidence that on 18 June 2021, he made an arrangement with the applicant to come in and see him. The applicant attended the police station voluntarily. He was arrested and subsequently released. While the applicant was at the police station, he voluntarily provided a DNA sample, which was then forwarded to the DNA experts for analysis.
In his evidence-in-chief, DSC Stone then detailed the other steps he took in his investigation. He was asked, in relation to speaking to each of the witnesses who had given evidence at the trial that they attended the party, whether he had asked them if they had taken drugs on the night. He said, ‘No, … because I made a judgment call on each witness as to whether I believed it was relevant to their statement’.
In cross-examination, DSC Stone agreed that the applicant was ‘a person of no prior criminal convictions whatsoever’.
DSC Stone was asked which of the witnesses he had asked about their consumption of drugs. He said he asked the complainant and Ms Anderson, but that he could not remember asking any of the other witnesses. He also did not recall asking the complainant who she got the drugs she used from. When challenged about his failure to ask such a question, he said:
I’m not gonna have a complainant giving a statement for rape and then send them out the door and go and arrest someone on the back of that statement. I think it sends a very bad message about the women coming forward to report these types of incidents if we’re going to nitpick out of statements.
The pretext call
At the start of the pretext call, the applicant thanked the complainant for calling. Shortly thereafter, there was the following exchange:
[APPLICANT]:        But I honestly did not mean to hurt you and clearly, like, I’ve completely misread the situation. I thought that we were having fun which we clearly — I thought you were enjoying it at the time which obviously you weren’t and it’s not O.K. ‘cause obviously you didn’t want to do it, which I didn’t realise at the time.
[COMPLAINANT]:   But I said so many times.
[APPLICANT]:        I — I know — I know you’re saying that but, like, at the time, like, I honestly — I don't know if I didn’t hear you but, I, like, obviously didn’t - - -
[COMPLAINANT]:   But you agreed, like, you agreed with me, so you did hear because you just agreed.
[APPLICANT]:        Agreed — agreed here now?
[COMPLAINANT]:   No, like, when I said - - -
[APPLICANT]:        Yeah. I knew, like, when we were going — like, when we were going upstairs, like, we agreed not to, then I thought, like, things that led to that, and clearly it didn't, like, I’ve obviously, like, screwed up. Like, I honestly thought, like, that’s where we were going and then - - -
[COMPLAINANT]:   But you can’t actually say that you thought that, like, you — you cannot say that you genuinely thought I wanted to. Like, what about covering my mouth when I was yelling for India? What about that? Like, what do you — what’s your excuse for that?
[APPLICANT]:        I honestly — like, honestly if you say that that happened but I honestly don’t think that that did happen.
…
[APPLICANT]:        But I honestly do not recall covering your mouth.
[COMPLAINANT]:   That’s just bullshit. That is rubbish.
…
[APPLICANT]:        I don’t. I don’t think that did happen, [Bev], like, honestly it didn’t.
[COMPLAINANT]:   It did happen. I remember it so clearly and you said to me, when I was yelling for India, you said to me, ‘India wants you to do this’. Like, I’m some fuckin’ idiot. I remember it so clearly.
[APPLICANT]:        You — you — wait — you called for India, like, after all it had happened.
[COMPLAINANT]:   That’s not true at all. You know that. You know that’s not true. I don’t think you understand, like, the effect of doing that kind of thing has on someone.
[APPLICANT]:        No, like, that is honestly how I recall it clearly. I’m being honest. That is how I recall it, that you — and that, like, after — and then when you realised that I cummed and then I thought — then that’s when you started calling for India and then I was just trying to, like — I obviously had upset you and then you were crying and then I was trying to help.
[COMPLAINANT]:   That’s just rubbish.
Later in the call, the applicant said:
Yeah. I know and I’m — I know and, yeah, and I’m so sorry for doing that to you and, like, I’m never going to put anyone in that situation or do anything like that again and I’ve learnt that it’s not OK to just go ahead even if, like — ‘cause I didn’t ask you and when we were at the start, like, we had agreed that we weren’t and then I thought that you wanted to, like, after, like, not that you — I’m not saying that — like, that’s just how I thought the situation was going, like, that you wanted to, not — like, that that’s where it was leading to and clearly it wasn’t and I’ve clearly fucked up so bad and I hurt you. But I honestly do not remember the covering — the hand thing.

The agreed facts

The agreed facts related to two topics: first, the results of DNA testing of samples taken from the complainant and the applicant; and secondly, DSC Rowe’s notes of her conversation with the complainant on the night of 1–2 January 2021.
For present purposes, it is not necessary to set out all of the facts agreed between the parties relating to the DNA evidence. It is sufficient to note that both a high vaginal swab and a vulval swab taken from the complainant by Dr Wilson contained a ‘sperm fraction’, the DNA of which was ‘100 billion times more likely if [the applicant] was a contributor to the DNA found on that swab than if he was not a contributor’.
DSC Rowe’s notes (with irrelevant material having been redacted) were attached to the notice of agreed facts and provided to the jury. The notes are difficult to read and the jury was not provided with a transcript of them. However, parts of them were read out at various points in the trial (in particular, during the cross-examination of the complainant). Relevantly, those notes provided:
Digital penetration went on and off for 30–40 minutes.
Put his penis in my vagina, felt like a while, then put his penis in my mouth lying down on the bed, that didn’t last very long.
I wasn’t doing anything & he didn’t like that. He was getting frustrated.
…
Using hand over my mouth.
I was yelling out, used hand to cover my mouth, full body weight on me.
Straight away realised what he was doing when he shut the door and told him don’t want to have sex.
No force.
Was wearing jeans, sneakers and white top.
He took jeans and undies off around one leg.
…
My friend India Anderson came in. He pulled his penis out.
He kept saying it made him look bad.

Character witnesses

As we have already noted, the applicant called two character witnesses at trial: Caitlin Lynch and Georgia Kieran.
Ms Lynch gave evidence that she had known the applicant for 13 years. She knew him as a friend of her family. She described him as ‘incredibly honest’. Asked how he conducted himself around women, Ms Lynch said, ‘I have only ever found him to be respectful’. She described him as kind and gentle, and said that she had never seen anything that would concern her about his interactions with women.
Ms Kieran gave evidence that she met the applicant two years before trial through mutual friends. Thirteen months before trial, she commenced an intimate relationship with him. She described the applicant as ‘an honest, reliable, respectful person’. She said that he had never been inappropriately sexual towards her or her female friends.

Defence counsel’s final address

The theme of defence counsel’s final address to the jury was that the complainant had ‘lied at each and every turn’. Starting with the complainant’s drug use, and moving to the issue of alcohol and then the other matters about which he had cross-examined the complainant, defence counsel identified what he said were the lies told by the complainant. From time to time, defence counsel tallied the number of lies which he asserted had been told by the complainant — eventually arriving at a figure of 102.
Towards the end of his final address, counsel said to the jury:
Just imagine it was your son or daughter in that dock sitting where [the applicant] sits now or if it was your brother or sister accused of a very serious crime and you come to court supporting that family member and you’re operating with the presumption of innocence as you are now, ladies and gentlemen, and you’re hearing the main witness for the prosecution tell over 100 lies, you’re hearing inconsistency after inconsistency, you see a collection of witnesses, that motley crew of witnesses, you would be grateful, you would be grateful that we have a legal system that allows for a person accused of such serious crimes to have representation.
Counsel concluded his address to the jury by submitting that the jury’s verdicts were ‘obvious in this case’, and that it was time ‘after three years to end this nightmare, to return verdicts of not guilty to each and every charge’.

Proposed ground 1: applicant’s submissions

Under proposed ground 1, the applicant contended that this was a case where the evidence of the complainant contained so many untruths, discrepancies and inadequacies that no jury acting rationally could have been satisfied beyond reasonable doubt of her evidence as to the charges on the indictment.
In support of that submission, the applicant referred to the passage in Pell where the High Court said that the function of a court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence (while proceeding on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable) is to examine the record ‘to see whether, notwithstanding that assessment — either by reason of inconsistencies, deficiencies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt’.[11]
[11]Pell vThe Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’). See also M v The Queen (1994) 181 CLR 487 (‘M’).
Having referred to this passage in Pell, the applicant then sought to draw support from (or perhaps a parallel with) a passage in the judgment of Priest JA in Bangoura v The King,[12] where his Honour said of some of the evidence given by the complainant in that case:
ES’s assertion that she did not go out alone until she heard that her attacker had been caught cannot have been other than a lie. When confronted by the CCTV footage, ES then opportunistically and deliberately fabricated another lie, that she had been using herself as ‘bait’. Even if one accepts the premise that credit is divisible, I regard ES’s demonstrable lies — and her apparent willingness to tell them without compunction — significantly diminish the overall credibility and reliability of ES’s evidence. Her readiness to perjure herself is no mere bagatelle.[13]
[12][2024] VSCA 292 (Emerton P, Priest and McLeish JJA) (‘Bangoura’).
[13]Ibid [280].

In relation to how the complainant came to be on the bed, the applicant submitted that the complainant lied to SC Durston when she told him that the applicant forced her onto the bed. The short answer to this submission is that the complainant never told SC Durston (or any other police officer) that she was forced onto the bed. The complainant in fact told SC Durston that the applicant had ‘pushed [her] on the bed’; and, at the risk of repetition, in re-examination, the complainant said, ‘It wasn’t forced … it was pushed but it wasn’t in an aggressive way at all’.
In relation to the applicant’s assertion that Mr Evans gave evidence at committal that ‘on the night [he] had heard the applicant deny doing anything wrong’ and that this evidence was inconsistent with the evidence given by Mr Evans at trial, it is necessary to set out the following part of the cross-examination of Mr Evans dealing with this issue. Specifically, the cross-examination of Mr Evans proceeded at trial as follows:
Yes … you were asked this question [at committal], ‘But is that the truth that on the night, that he denied doing anything wrong?’. Answer: ‘Yes, he always denied to me that he did anything wrong’. Now, do you see that question asked of you and you see your answer there?---Yeah, yeah, I do.
Does that refresh your memory about - - -?---Yeah, it - - -
- - - being asked that question and giving that answer?---Yeah, it does.
And do you accept that you were asked that question and you gave that answer at the committal?---Yeah.
And was that the truth?---Ah, yes.
Right, but somehow now as you give evidence in this - - -
HIS HONOUR: Sorry, [defence counsel] to interrupt, it seems that answer goes on and that further part wasn’t read.
[DEFENCE COUNSEL]: Yes, of course it wasn’t but that’s – yes, that’s fine.
HIS HONOUR: Well, out of fairness, the full answer to that question ought be read to him if you’re going to ask and make a point of whether he’s adopted that.
[DEFENCE COUNSEL]: No, he has adopted. He’s accepted, he just accepted it.
HIS HONOUR: Can you read the full answer to him if you’re going to ask him to adopt it, please.
[DEFENCE COUNSEL]: Well the next question is, ‘Okay’ and so you see line 20 there?---Yes, yes I do.
Yes, I’ll read it both in tandem. Question: But is the truth that on the night that he denied doing anything wrong. Answer: Yes, he always denied to me that he did anything wrong. Next question: ‘Okay’. You said, ‘Other than when he first came up to me’. Do you see that there?---Yes.
Do you remember being asked the second question and giving the second answer?---Yes.
You say that was the truth do you?---Yes.
Properly analysed, there is little (if any) substance in the applicant’s complaint about the evidence given by Mr Evans at trial being inconsistent with his evidence at committal. It was open to the jury to conclude that the evidence Mr Evans gave at committal and trial was not inconsistent in any material way. Specifically, the jury (who it is to be remembered had the benefit of seeing Mr Evans give his evidence and be cross-examined) could reasonably have concluded that Mr Evans’ evidence (both at committal and trial) was that, apart from when they first spoke after midnight at the party (where the applicant said to Mr Evans ‘I fucked up. I fucked up. I know how this shit goes. I am going to gaol’), the applicant always denied to Mr Evans that he did anything wrong.
Such inconsistency as there might have been between Mr Evans’ failure to recollect any subsequent conversation with the applicant (in circumstances where Mr Evans gave evidence about reading messages sent by the applicant on the Facebook Messenger group chat), and his reference to the applicant always denying to him that he (the applicant) did anything wrong, was not one which required the jury to reject Mr Evans’ evidence of the conversation he said that he had with the applicant at 12:30 am on 1 January 2021.
In relation to the applicant’s assertion that Mr Kelderman failed to mention, and then claimed not to remember sending, a text message to the applicant on 1 January 2021 calling the complainant a liar, again, it is necessary to set out the relevant part of the cross-examination. Mr Kelderman was asked and answered the following question:
Do you remember sending a message to him [the applicant] in the early hours of – well, on 1 January – do you remember sending a message to him, ‘[The complainant] a liar’?---I don’t remember that, no but I know that I did say that.
After attempting to reformulate a subsequent question, and a short interjection by the judge, Mr Kelderman was then asked and answered the following questions:
So, you admit sending that message, ‘[The complainant] a liar’?---Yep.
And in what mode of communication did you send that message on?---That was over Facebook Messenger …
On any fair reading of Mr Kelderman’s evidence, the applicant’s complaint about Mr Kelderman’s failure to mention or remember the ‘text message’ in which he called the complainant a liar is without substance. First, Mr Kelderman was not asked any question in his evidence-in-chief about any such text. Secondly, while Mr Kelderman did initially say that he did not remember sending any text, he said immediately that he knew that he had said what was asserted to be in the text. Thirdly, a very short time later in his cross-examination, Mr Kelderman remembered sending the relevant message by Facebook Messenger. Nothing in his evidence suggests any reluctance on Mr Kelderman’s part to give evidence that, in a communication with the applicant, he (Mr Kelderman) had called the complainant a liar.
The complainant, and those Crown witnesses who attended the party and gave critical evidence against the applicant, were subjected to detailed and rigorous cross-examination at trial. All of the relevant differences and discrepancies in their evidence were the subject of cross-examination and detailed submissions made by defence counsel in his final address. While defence counsel submitted to the jury that the various differences and discrepancies relied upon by the applicant were the product of dishonesty on the part of the complainant and other Crown witnesses, it was open to the jury (who, it must be remembered, had the considerable advantage of seeing and hearing from each of the relevant witnesses — an advantage which was, of course, not enjoyed by this Court) to reject that submission.
Putting to one side evidence given by witnesses about illicit drug use (in respect of which the jury might have concluded that it was understandable that such witnesses might be less forthcoming on that topic than on other topics), we do not see any basis upon which it could be concluded that the jury was bound to reject the critical parts of the evidence of the complainant and other attendees at the party dealing with the elements of the offences with which the applicant was charged. More specifically, it was open to the jury to accept the relevant parts of the complainant’s evidence which gave rise to the guilty verdicts on charges 2, 4 and 5. The evidence did not require the jury to have a reasonable doubt about any of those charges. Contrary to the applicant’s submissions, there is no basis for concluding that it was not open to the jury to accept the complainant as an honest witness, whose evidence was both credible and reliable on all of the issues critical to the charges made against the applicant.
While much was made by the applicant’s senior counsel in argument about the applicant’s good character and his consistent assertions of having done nothing wrong and his ‘belief in his own innocence’, it is to be remembered that the third element of the crime of rape is that ‘A does not reasonably believe that B consents to the penetration’.[25] Moreover, at the time of the alleged offending, s 36A of the Crimes Act 1958 relevantly provided:
(1)Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2)Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents …
[25]Crimes Act 1958, s 38(1)(c).
The question of the applicant’s guilt fell to be determined by the jury not by reference to whether the applicant believed the complainant was consenting, but by reference to the question of whether, in all the circumstances, he reasonably believed the complainant was consenting. On the complainant’s evidence, it was well open to the jury to be satisfied beyond reasonable doubt that any belief the applicant had in her consent (including any honest belief on his part) was not reasonable. That conclusion was open on the whole of the evidence, including the applicant’s repeated protestations that he had done nothing wrong and the evidence of his good character. Indeed, the jury may have regarded the applicant’s description to Mr Smith and to Mr Kelderman of having ‘just slipped it in’ without ‘taking any steps … to find out’ (asking) whether the complainant consented, as telling against the proposition that any belief the applicant might have held, in the complainant’s consent to his penile penetrations of her, was reasonable.
Finally on proposed ground 1, we would make the following observations about the applicant’s reliance upon the passage in Priest JA’s judgment in Bangoura,[26] to which we were referred:
(1)Bangoura was a very different case from the present case. It involved a complainant who gave evidence about her conduct in the weeks after she was allegedly raped and assaulted by the accused which the court concluded could only have been a lie; which, when the complainant was caught out, caused her to ‘opportunistically and deliberately’ fabricate another lie[27] and/or to give further evidence, described by the plurality as ‘preposterous and false’, invented to try and explain the original lie.[28]
(2)While the court in Bangoura allowed the appeal and ordered that acquittals be entered in respect of the charges for which the applicant had been convicted, the plurality noted that even if the jury accepted that the complainant had told lies, that was ‘not necessarily sufficient to show that the jury must have had a doubt about the applicant’s guilt’.[29]
(3)The passage in Bangoura relied upon by the applicant does not contain any statement of legal principle. It is a conclusion based on the facts of that case. To the extent that the applicant submitted that this Court should reason from the factual conclusion in Bangoura to the conclusion for which the applicant contends in this case, that submission must be rejected. Reasoning from a factual conclusion in one case to a factual conclusion in another case has long been the subject of deprecation by the High Court.[30]
(4)In any event, nothing in the facts or circumstances in Bangoura provides any support for a finding in the present case that the jury’s guilty verdicts were unsafe and cannot be supported by the evidence.
[26]Bangoura [2024] VSCA 292, [280] (Priest JA).
[27]Ibid [280] (Priest JA).
[28]Ibid [131] (Emerton P and McLeish JA).
[29]Ibid [193].
[30]See in particular Teubner v Humble (1963) 108 CLR 491, 503 (Windeyer J); Waugh v Kippen (1986) 160 CLR 156, 161–2 (Gibbs CJ, Mason, Wilson and Dawson JJ) and Bus v Sydney County Council (1989) 167 CLR 78, 89 (Mason CJ, Deane, Dawson and Toohey JJ). See also Knight v Maclean [2002] NSWCA 314, [61] (Heydon JA, with whom Meagher JA and Young CJ in Eq agreed); Nenna (a pseudonym) v The Queen [2021] VSCA 183, [91] (Beach, McLeish and T Forrest JJA); Howe v Zuchowski [2024] VSCA 56, [240] (Beach, Lyons JJA, J Forrest AJA); CRS20 v Secretary, Department of Home Affairs [2024] FCA 619, [82] (Wheelahan J).
Having examined the whole of the evidence, and having considered all of the inconsistencies referred to by the applicant and all of the alleged deficiencies and inadequacies relied upon by him, both individually and collectively, we are not persuaded that it was not open to the jury to convict the applicant on charges 2, 4 and 5. Accordingly, proposed ground 1 must be rejected.

Proposed ground 2: applicant’s submissions

Under proposed ground 2, the applicant contended that the guilty verdicts on charges 2, 4 and 5 were inconsistent with the not guilty verdicts on charges 1 and 3.
The applicant submitted that even if it were possible to conclude that the jury acquitted the applicant on charge 1 because they were ‘troubled by the belief in consent element’,[31] that would not explain the acquittal on charge 3. As the applicant put it, there was no safe or rational path of deliberation that could have seen the jury: first, have a reasonable doubt about the applicant’s belief in the complainant’s consent for the purposes of charge 1 (digital penetration); secondly, have no such doubt for charge 2 (penile/vaginal penetration); and thirdly, have that reasonable doubt ‘resurface’ when it came to charge 3 (penile/vaginal penetration)’.
[31]As to which, see Sentencing Reasons, [54].
The applicant submitted that in circumstances where, on the Crown case, there were three acts of penile/vaginal penetration, and on the defence case there was only one such act, ‘[a]ny process of deliberation which involved an agreement to split the difference and find the applicant guilty of two charges of penile/vaginal penetration would represent an irrational compromise’ by the jury.
Next, in relation to what the applicant described as ‘the alternative suggestion’ that the jury may not have been satisfied that the second alleged act of penile/vaginal penetration actually took place, the applicant submitted that, on the complainant’s detailed account (including her evidence of the applicant struggling to maintain an erection after the first penile/vaginal penetration), the jury could not rationally convict the applicant of charge 2 but acquit him of charge 3. The applicant submitted that acceptance of the complainant’s evidence would have left no room for reasonable doubt about the fact that the second alleged act of penile/vaginal penetration took place, and no room for any reasonable doubt that the applicant was aware that the complainant did not consent to that act of penetration.
In summary, the applicant submitted that jury’s acceptance of the complainant’s evidence would have meant there was no safe or rational path of deliberation that could explain the different verdicts in relation to charges 1, 2, 3, 4 and 5. Acceptance of the complainant’s evidence should have seen the applicant convicted of all five charges.
The applicant submitted that, in this context, and by way of example, the discrepancies and inadequacies associated with the complainant’s evidence on charge 4 (for which he was convicted) mirrored, if not outweighed, the inadequacies and discrepancies associated with her evidence in relation to charge 3 (of which the applicant was acquitted).

Proposed ground 2: respondent’s submissions

The respondent submitted that there was no inconsistency in the jury’s verdicts, and that it was logically and reasonably open to the jury, properly applying the law as directed and based on the evidence before them, to reach verdicts of guilty on charges 2, 4 and 5, and verdicts of not guilty on charges 1 and 3.
The respondent submitted that, given the circumstances in the lead-up to charge 1, it was open to the jury to conclude that the applicant may have reasonably misunderstood whether the complainant was consenting to being digitally penetrated (charge 1), ‘especially given the prolonged duration of the digital penetration without any physical resistance’. The respondent submitted that such a conclusion ‘may have been reinforced by the applicant’s immediate statements to Mr Smith and Mr Kelderman pertaining to the digital penetration that the complainant appeared to enjoy this act’.
In relation to charge 3, the respondent submitted that the jury could accept the complainant’s account that there were at least two instances of penile/vaginal penetration, ‘but experienced a doubt about whether there was a hiatus during the initial act’. In support of that submission, the respondent relied upon four matters:
(1)First, the complainant had difficulties recalling where and how the applicant was positioned as he masturbated: namely, whether he was standing or lying down, or whether he was on or off the bed.
(2)Secondly, ‘unlike other acts’, the complainant did not speak of the applicant masturbating in her complaints to DSC Rowe, SC Durston or Dr Wilson.
(3)Thirdly, the complainant told DSC Rowe and Dr Wilson about two, not three, incidents of penile/vaginal penetration — the sequence of penetrative acts described to them being digital/vaginal, then penile/vaginal, then penile/oral and then penile/vaginal. This was consistent with the complainant’s account regarding charges 1, 2, 4 and 5 — but not charge 3.
(4)Finally, the complainant’s evidence was that the applicant was prompted to engage in oral sex because he was frustrated about not being able to maintain an erection. It was open to conclude that the complainant was mistaken about there being a hiatus between when the applicant stopped the initial act of penile/vaginal penetration because he could not ‘stay hard’ and began penetrating her mouth with his penis for the same reason.
The respondent submitted that, taken together, the guilty verdicts on charges 2, 4 and 5 could be logically and reasonably reconciled with the not guilty verdicts on charges 1 and 3, and that proposed ground 2 should accordingly be rejected.

Proposed ground 2: analysis and conclusion

The principles to be applied when considering whether jury verdicts might be inconsistent are well known.[32] They were recently summarised by this Court in Booth v The King,[33] as follows:
When considering a complaint of inconsistent verdicts, the test is one of logic and reasonableness. The applicant must satisfy the court that no reasonable jury applying their minds properly to the facts could have given the verdicts they did.
As the applicant accepted, this test is not easily satisfied. If there is a proper way by which purportedly inconsistent verdicts may be reconciled, resulting in a conclusion that the jury properly performed their function, that conclusion will generally be accepted.
One way to reconcile purportedly inconsistent verdicts is on the basis that they were simply the result of ordinary directions that the jury must consider each charge separately, be satisfied of guilt beyond reasonable doubt, and that they may accept a witness’s evidence in whole or in part. Indeed, an acquittal on a particular charge does not necessarily mean that the jury found the relevant witness’s evidence to be untruthful. A jury might believe that a witness is likely to be telling the truth, but still require something more before reaching a conclusion of guilt beyond reasonable doubt. Or a jury might consider a witness to be more reliable, or specific, about some parts of their evidence than others.
Another way to reconcile purportedly inconsistent verdicts is on the basis that the jury took a ‘merciful’ view of the facts. A jury may consider that, although a number of charges have been proved beyond reasonable doubt, justice is sufficiently met by convicting on less than the full number of charges. This is a legitimate approach for a jury to take, even if it may not appear strictly logical to an appellate court.
Nevertheless, cases will remain where the verdicts affront logic and common sense, and strongly suggest that the jury failed properly to perform their duty. The verdicts may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between offences, or a lack of clarity in the directions given to them. An appellate court must intervene in such a case. That said, there are no hard and fast rules for when appellate intervention is required, which will depend on the facts of the case.[34]
[32]See MacKenzie v The Queen (1996) 190 CLR 348, 365–8 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey agreeing at 350–1); MFA v The Queen (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ); Abdel (a pseudonym) v The King [2024] VSCA 36, [58] (Boyce, Whelan and T Forrest JJA); Frank (a pseudonym) v The King [2024] VSCA 37, [21] (Boyce, Whelan and T Forrest JJA); Sladek v The King [2024] VSCA 119, [46]–[49] (Emerton ACJ, Priest and Kaye JJA); Schliefert v The King [2024] VSCA 197, [38] (Priest, Taylor and Boyce JJA); Sriranganathan v The King [2024] VSCA 257, [33]–[34] (Niall and Taylor JJA, Priest JA agreeing at [1]); Brooks (a pseudonym) v The King [2024] VSCA 305, [91]–[93] (McLeish, Boyce and Kaye JJA); Ballard (a pseudonym) v The King [2025] VSCA 120, [80]–[86] (Emerton P, Kidd and Kaye JJA).
[33][2024] VSCA 318 (Beach, Kennedy and Orr JJA). See also Pears [2025] VSCA 35, [98] (Kennedy, Boyce and Kaye JJA).
[34]Ibid [125]–[129] (citations omitted).

There is no substance in the applicant’s submissions that the jury’s verdicts were inconsistent.
First, the acquittal on charge 1 is readily reconcilable with the convictions on the later charges on the basis that the jury may well have had a reasonable doubt about the applicant’s lack of belief in the complainant’s consent in respect of charge 1 but not in respect of any of the subsequent charges. The events alleged to constitute charge 1 were the first in time during the course of the physical encounter between the applicant and the complainant which gave rise to the charges. Having regard to the lead-up to those events, and the way in which they were described by the complainant, the jury may well have had a reasonable doubt about the lack of a reasonable belief in the complainant’s consent to the digital penetration that was the subject of charge 1; while having no such doubt about the applicant’s lack of any reasonable belief in the complainant’s consent to the acts of penetration which followed the digital penetration.
Specifically, the jury might have reasoned that, having regard to the fact that the complainant had willingly kissed the applicant before going upstairs, and to the fact that the complainant had willingly and consensually kissed the applicant in the bedroom before and while willingly sitting and then lying on the bed with him, and notwithstanding her initial protestations, there was a reasonable possibility that the applicant reasonably believed that the complainant was consenting to the digital penetration of her vagina (charge 1). The jury may also have thought that there was a reasonable possibility that the applicant believed that such agreement as there was between them not to have sex was one which did not prevent him from digitally penetrating the complainant — but rather was only indicative of the complainant’s lack of consent to any penile penetration.
However, the jury may have been satisfied beyond reasonable doubt that the applicant did not have any reasonable belief in the complainant’s consent to his subsequent acts of penile penetration. The complainant had made it known that she did not want to have sex — which the jury could have concluded (favourably to the applicant) was a reference to any penile penetration of her, rather than any digital penetration. Moreover, the jury might have concluded that any possibility that the applicant initially had a reasonable belief in the complainant’s consent to being sexually penetrated had evaporated by the time of the first penile/vaginal penetration (charge 2) in circumstances where the complainant was continuing to tell the applicant that she felt he was not listening and that she did not want to have sex with him.
Secondly, the applicant’s assertion that, in order for the jury to acquit him on charge 3, the jury ‘must not have been able to accept a large part of the complainant’s evidence surrounding [that charge]’ cannot be accepted. The acquittal on charge 3 may readily be explained by reference to two interrelated matters.
First, as we have already observed, the complainant’s initial reports to DSC Rowe and Dr Wilson were of four sexual penetrations occurring in the following order: first, a digital/vaginal penetration; secondly, a penile/vaginal penetration; thirdly, a penile/oral penetration; and fourthly, another penile/vaginal penetration. The jury could have reasoned that, while the complainant’s evidence of two instances of penile/vaginal penetration between the digital/vaginal penetration and the penile/oral penetration was probably true, they could not be satisfied beyond reasonable doubt about this, having regard to the fact that her initial reports to DSC Rowe and Dr Wilson did not include any reference to two separate penile/vaginal penetrations at this stage in the sequence of events.
Secondly, there was a difference in the quality of the complainant’s evidence about the second of the two penile/vaginal penetrations she alleged occurred at this stage in the sequence, compared with the penetrations alleged relating to charges 1, 2, 4 and 5. Specifically, in her evidence-in-chief in respect of charge 3, the complainant commenced her description of the alleged offence by saying that the applicant ‘tried again’.
The jury may have concluded that the reference in her evidence-in-chief to the applicant trying again, when the events alleged to constitute charge 3 occurred, was a reference to the applicant trying to put his penis in her vagina. While the complainant went on to say that the applicant did put his penis in her vagina, the jury may have contrasted the complainant’s initial reference in her evidence-in-chief to an attempt by the applicant to do this, with the complainant’s more definite statements in her evidence-in-chief about the penetrations that occurred which formed the basis of charges 1, 2, 4 and 5. In the context of the complainant’s evidence that the applicant was having trouble ‘staying hard’ and that there was a point before he started penetrating her mouth with his penis that she ‘thought he’d given up with it’, the jury may have held a reasonable doubt about whether the applicant actually successfully penetrated the complainant’s vagina with his penis again prior to putting his penis in the complainant’s mouth.
Contrary to the submissions for the applicant, the acquittal on charge 3 does not suggest that the jury was unable to accept any or all of the complainant’s evidence relating to that charge — merely that the jury must (after having considered all of the evidence) have had a reasonable doubt whether the penetration alleged to constitute charge 3 in fact occurred.
Proposed ground 2 must be rejected.

Conclusion

While the applicant’s proposed appeal was sufficiently arguable to justify a grant of leave to appeal, for the reasons given above, the appeal must be dismissed.
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[2025] VSCA 141

26 June 2025