Frew v R

Case •

[2022] NSWCCA 165

•

05 August 2022

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Frew v R [2022] NSWCCA 165
Hearing dates: 13 April 2022
Date of orders: 13 April 2022
Decision date: 05 August 2022
Before: Brereton JA at [1];
Garling J at [66];
Hamill J at [77].
Decision:

1. Leave to appeal be granted;

2. The appeal be allowed;

3. The conviction of the applicant in the District Court on 3 March 2021 and consequent sentence imposed on 2 July 2021 be quashed;

4. There be substituted a verdict of acquittal; and

5. The applicant be released from custody forthwith.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where direct evidence only available from conflicting accounts of complainant and accused – Where trial judge gave self Liberato direction and then rejected accused’s evidence – Finding that having regard to the whole of the evidence, accused’s account cannot be set aside as not a reasonably possible version of events, and thus a reasonable doubt as to his guilt is entertained – Held that trial judge enjoyed no relevant advantage over appellate court and thus ought to have entertained the same reasonable doubt – Conviction and sentence quashed and substituted with verdict of acquittal

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Cases Cited:

Atai v R [2014] NSWCCA 210

Bell v R [2017] NSWCCA 207

De Silvav The Queen (2019) 268 CLR 57; [2019] HCA 48

Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Ford v R [2020] NSWCCA 99

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galea v Galea (1990) 19 NSWLR 263

Gittany v The Queen [2016] NSWCCA 182

Hodgson v R [2022] NSWCCA 22

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

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

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Maughan v R [2020] NSWCCA 51

Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26

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

Proutenv Chapman [2021] NSWCA 207

R v Holden [2014] NSWCCA 230

Rao v R [2019] NSWCCA 290

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

Smith v R [2019] NSWCCA 162

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

Category:Principal judgment
Parties: Alexander Frew (Applicant)
The Crown (Respondent)
Representation:

Counsel:
Mr T Game SC with Ms A Cook (Applicant)
Mr G Newton (Crown)

Solicitors:
Armstrong Legal (Applicant)
Office of Director of Public Prosecutions (Crown)
File Number(s): 2019/288700
Publication restriction: Publication of any matter which identifies or which is likely to lead to the identification of the complainant is prohibited: Crimes Act 1900 (NSW), s 578A.
 Decision under appeal 
Court or tribunal:
District Court at Downing Centre, Sydney
Jurisdiction:
Criminal
Date of Decision:
Conviction: 3 March 2021;
Sentence: 2 July 2021
Before:
Girdham SC DCJ
File Number(s):
2019/288700

HEADNOTE

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

The applicant was convicted after a judge-alone trial in the District Court of a single count of sexual intercourse without consent contrary to Crimes Act 1999 (NSW), s 61I. There was no dispute that sexual intercourse had taken place; the only issue at trial was that of consent. In finding the applicant guilty, the trial judge found that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not. The applicant sought leave to appeal the conviction on the sole ground that the verdict was unreasonable having regard to the evidence.

Held, per Brereton JA [64]; Garling J [76] and Hamill J agreeing [82]), having at the conclusion of the hearing of the appeal granted leave to appeal, allowed the appeal, quashed the conviction and sentence, substituted a verdict of acquittal and ordered the applicant’s release forthwith:

  1. In order to obtain a conviction, the prosecution was obliged to prove beyond reasonable doubt that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not consent. Upon review of the whole of the evidence, there is at least a reasonable possibility that the applicant’s account – that the complainant did consent, or that he believed that she did so – might be true. As a result, there remains a reasonable doubt as to his guilt, such that the Crown did not prove its case to the requisite standard: [61]-[62] (Brereton JA); [74] (Garling J); [77], [81]-[82] (Hamill J).

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 and De Silvav The Queen (2019) 268 CLR 57; [2019] HCA 48, followed; Murray v The Queen (2002) 211 CLR 193, considered.

  1. Where an appellate Court entertains a reasonable doubt as to a convicted person’s guilt, the question is then whether that doubt can be resolved by the advantage enjoyed by the primary finder of fact in seeing and hearing the evidence. In this case, the trial judge rejected the applicant’s account on the basis of plausibility, not demeanour, and in that respect enjoyed no advantage over the appellate Court. Accordingly, the doubt entertained by this Court ought to have been entertained by the trial judge: [63]-[64] (Brereton JA); [75]-[76] (Garling J); [77], [82] (Hamill J).

Gittany v R [2016] NSWCCA 182, applied.

Judgment

  1. BRERETON JA: On 3 March 2021, the applicant Alexander Frew was convicted at a judge-alone trial in the District Court of a single count of sexual intercourse without consent contrary to Crimes Act 1900 (NSW), s 61I. On 2 July 2021, he was sentenced to imprisonment for three years and eight months with a non-parole period of 2 years and three months. By notice of appeal filed on 22 September 2021, he appeals against his conviction, on the sole ground that the verdict was unreasonable. Because that ground of appeal is not one of law alone, leave to appeal is required. On 13 April 2022, at the conclusion of the hearing of the appeal, the Court made orders granting leave to appeal, allowing the appeal, quashing the conviction and sentence, substituting a verdict of acquittal, and ordering the applicant’s release forthwith, for reasons to be given subsequently. These are my reasons for joining in those orders.

Background

  1. The applicant, the complainant and another young woman Emma, shared a house in Waterloo. The complainant had emigrated from the United Kingdom and had resided in the Waterloo property for approximately five months since November 2018. The applicant had moved in about two months before her, and Emma had resided there for two to three years. The applicant occupied a bedroom on the ground floor, Emma on the first floor, and the complainant on the second floor. In March 2019 the applicant and the complainant were both 26 years of age. All three got on well together. It is clear enough that the applicant and the complainant were more than mere housemates, and had become reasonably close friends. However, prior to 17 March 2019, the relationship was purely platonic, and nothing sexual had ever occurred between the applicant and the complainant.

  2. 17 March 2019 was a wet day. In the afternoon the applicant, the complainant and Emma watched a movie together, played a card game, and chatted. They each had a few drinks; the applicant was drinking whisky and made whisky sours for the complainant and Emma, and then the complainant and Emma shared a bottle of sparkling wine.

  3. The complainant received a message from a friend Sophie, inviting her to join Sophie and another friend Chloe in Surry Hills that evening. The complainant mentioned that she was drinking with the applicant and Emma. Emma already had plans to meet another friend, and the applicant accompanied the complainant in a taxi to the Clock Hotel on Crown Street, Surry Hills, leaving home at about 7:30 and arriving at about 7:40 pm. At the hotel they ordered a drink each and sat on the balcony having a cigarette together while waiting for Sophie and Chloe, who arrived 20 to 25 minutes later.

  4. After spending about two hours at the Clock, they moved down the street to the Dolphin Hotel, where they arrived about 10:00 pm. At the Dolphin Hotel, the applicant purchased a glass of red wine each for the complainant and himself. According to the complainant, the group dynamic was “pretty casual”; they were all very aware that they had work the next day and did not want to consume too much alcohol; they were happy to spend some time together and then go home. [1] They left the Dolphin Hotel around midnight, and the applicant and complainant shared a taxi home. There was “nothing unusual” between them while in the taxi. [2]

    1. Tcpt, 23 February 2021, pp 28-29.

    2. Tcpt, 23 February 2021, p 29(13-26).

  5. According to the complainant, when they got home she was “definitely tipsy.” [3] According to the applicant, she was not sober but functional, and when they were in the cab he had no concerns for her welfare. [4] He described himself as intoxicated but completely functional. [5] They went into the applicant’s bedroom (on the ground floor), where the complainant sat on the applicant’s bed, and he sat at his desk while they had a conversation. [6] During the conversation, the complainant felt tired and very sick, attributing this to “red wine doesn’t sit well with me”. She told the applicant that the wine was making her feel sick and she wanted to throw it up, to have a “tactical vomit”. The applicant responded “okay”.

    3. Tcpt, 23 February 2021, p 59(26-31).

    4. Tcpt, 25 February 2021, p 162(10-23).

    5. Tcpt, 25 February 2021, p 163(19-21).

    6. Tcpt, 23 February 2021, p 29(29-30).

  6. From this point the two accounts, which until now are substantially consistent, diverge. According to the complainant, when she left the applicant’s room she said “good night, I’m going to bed”, and the applicant responded “good night”. [7] She went upstairs and, in the bathroom adjacent to her bedroom on the second floor, made herself vomit by putting her fingers down her throat. [8] According to the applicant, he followed her upstairs and waited outside her bathroom “for moral support” while she vomited; [9] he asked her if she needed anything, [10] and if she was okay; she said she was fine and was going to bed; [11] and he said that he would come and check on her “in a bit”. [12] The complainant denied that the applicant watched her enter her bedroom and stayed there until she got into bed, [13] that he asked if she was okay, [14] or said “I’ll come and check on you in a bit”. [15]

    7. Tcpt, 23 February 2021, pp 29-30.

    8. Tcpt, 23 February 2021, p 29(42-46); 60(33-35).

    9. Tcpt, 25 February 2021, p 148(11-14).

    10. Tcpt, 25 February 2021, p 164(34-42).

    11. Tcpt, 25 February 2021, p 148(15-16).

    12. Tcpt, 25 February 2021, p 148(18-20).

    13. Tcpt, 23 February 2021, p 61(36-43).

    14. Tcpt, 23 February 2021, p 61(45-46).

    15. Tcpt, 23 February 2021, p 62(01-03).

  7. The complainant got into her bed and at about 12:20 am sent a message to her friend Kieran in England, “I’m going to sleep now”. [16] According to the complainant, by then she was not wearing any clothes but had a sheet over her. [17] The fan was on. The bedroom door was closed. She put her phone on a charger, and went to sleep. [18]

    16. Tcpt, 23 February 2021, p 30(14-19).

    17. Tcpt, 23 February 2021, p 30(31-32).

    18. Tcpt, 23 February 2021, p 30(42) – 31(06).

  8. According to the applicant, he returned to his room and watched television on his laptop.

  9. At 12:34 am the applicant sent the complainant a text message, “holla atcha boi if you’re in trouble pls. Don’t wanna wake up to a situation. Regards, chef”. There was no response. At 12:52 am, he sent another message, “you all good?”. Again, there was no response. The complainant did not see these messages until later, after the events next described.

  10. According to the applicant, he was concerned about the complainant’s well-being and potentially vomiting in her sleep, [19] even if, on reflection, that was somewhat “dramatic”. [20] When he did not receive a response to his text messages, he went upstairs to check on the complainant. [21] The door to the complainant’s bedroom was closed, so he knocked on the door and opened it, and the complainant awoke. [22] He entered and closed the door behind him, [23] and asked the complainant if she was okay; she said that she was. [24] She was lying on her bed, perched up, [25] and the applicant sat on the edge of her bed and they talked for a while. [26] There was some talk of kissing, and they started kissing each other. [27] Then, the applicant removed the complainant’s top and underpants, [28] and then performed oral intercourse on her, and the complainant began to moan with pleasure. [29] It appeared to him that the complainant was an enthusiastic participant, as she said “you’re so hot”, “fuck me”, and “I want you to fuck me”. [30] However, in a “moment of clarity”, it struck him how awkward it would be in the morning, and he left the complainant’s room to return to his own room, where he watched television on his laptop. [31]

    19. Tcpt, 25 February 2021, p 170(02-04).

    20. Tcpt, 25 February 2021, p 167(40).

    21. Tcpt, 25 February 2021, p 148(39-41).

    22. Tcpt, 25 February 2021, p 148(39-42).

    23. Tcpt, 25 February 2021, p 172(40-47).

    24. Tcpt, 25 February 2021, p 148(42-43).

    25. Tcpt, 25 February 2021, p 149(02-06).

    26. Tcpt, 25 February 2021, p 149(08-12).

    27. Tcpt, 25 February 2021, p 149(29-30).

    28. Tcpt, 25 February 2021, p 149(45-48).

    29. Tcpt, 25 February 2021, p 150(03-09).

    30. Tcpt, 25 February 2021, p 150.

    31. Tcpt, 25 February 2021, p 150(23) – 151(02).

  11. The complainant denied that the applicant knocked on her door, entered the room and asked if she was okay, [32] that they began talking while she was lying on the bed and he was sitting on the end of the bed, [33] that there was a conversation about kissing that led to them kissing, [34] that the applicant removed some of her clothing and then performed oral intercourse on her, [35] that she was making pleasurable sounds [36] or said “fuck me”, [37] or that it ended when the applicant said he was going to bed or that she asked him to stay. [38] According to her, after falling asleep the next thing she remembered was waking up to the applicant in between her legs, performing oral sex with his tongue on her vagina: [39]

“I remember to this day my first thought being, ‘who am I with right now?’ I have woken up and I have felt his head in between my legs. I could feel his hair on me because he’s got quite long hair, his hands on my legs. And I remember kicking my leg out and saying, “what are you doing?” and he asked me, “what do you mean?”. And I then said “I need to make a phone call, and I picked up my phone and I rang Jake, and the purpose of making this phone call was to get Shakey out of my room. I remember him opening my door, leaving and shutting my door again. So he must have come in and shut the door.”

32. Tcpt, 23 February 2021, p 88(49) – 89(01-09).

33. Tcpt, 23 February 2021, p 89(23-28).

34. Tcpt, 23 February 2021, p 89(30-41).

35. Tcpt, 23 February 2021, p 90(03-09).

36. Tcpt, 23 February 2021, p 90(21-23).

37. Tcpt, 23 February 2021, p 90(35-36).

38. Tcpt, 23 February 2021, p 90(38-43).

39. Tcpt, 23 February 2021, p 31(13-21).

  1. She did not remember hearing, seeing or feeling anything before she woke up. [40] She was unable to say how long the applicant’s tongue was on her vagina: “I know I was asleep when it started and when I came around I am unable to say [when it stopped]”. She was still lying on her back on the bed and one of her legs was bent. The applicant was not on the bed; his hands were on her inner thighs, his head was in between her legs, his feet were on the floor and his knees were leaning against the bed. The applicant was clothed. He stood up when she kicked him and asked what he was doing. [41]

    40. Tcpt, 23 February 2021, pp 31-32.

    41. Tcpt, 23 February 2021, pp 31-32.

  2. At 1:41 am, the applicant sent the complainant a message: “come watch a movie?”. At 1:42 am, he sent a further message: “Good chat”. At 1:43 am, the complainant made a phone call to her friend Jake; the call was not answered. [42] According to the complainant, it was then that she noticed that she had received messages from the applicant, but she did not open them at that time; she was feeling strange, violated, confused and odd. [43] After looking at her phone, she went back to sleep. [44] She could not recall whether she fell back asleep immediately, and said she may have laid there awake for a few minutes. [45] She did not try to contact anyone else, and did not seek out her other flatmate Emma. [46] She awoke to her alarm at 7:00 am on Monday morning 19 March. She decided not to go to work because she was confused and upset about what had happened and did not feel that she could do her job.

    42. Tcpt, 23 February 2021, pp 33-34.

    43. Tcpt, 23 February 2021, pp 34-35.

    44. Tcpt, 23 February 2021, p 35(20-21).

    45. Tcpt, 23 February 2021, p 62(35-39).

    46. Tcpt, 23 February 2021, p 62(41-49).

  3. At 8:03 am the complainant received a text message from the applicant: “so none of that happened last night right? .. k thanks baiiiiii”. The complainant responded: “Omg I’m having weird flashbacks”, followed by an emoji. At 8:04 the applicant replied: “Yeah I’m piecing it together too”, and “Nonetheless a puzzle that should be forgotten”. The complainant responded: “Hahaha yes ok”. At 8:05 am the applicant sent: “Whoops”, and then at 8:17 am, “Should we group call em and fill her in?”, to which the complainant responded at 8:19 am: “R u crazy?”. At 8:20 am, the applicant replied: “Jokes”. The complainant answered: “Not even sure what happened myself but I will block it out”, with an emoji representing tears of laughing. At 8:21 am, she asked: “What happened with us??”, to which the applicant responded: “Uhh”. The complainant questioned: “We didn’t have sex did we”, and the applicant responded: “I ate you out then went to bed”, and “We didn’t fuck”, and then “But like it’s all the same”. The complainant replied: “Omg”, and then “What a weird night”. The applicant sent: “Super weird”, to which the complainant answered: “I went to bed alone. U just creeped your way up”. The applicant replied “Lol” and “Yep”, and at 8:23 am the complainant sent: “Right. Well let’s never re live that again”, to which the applicant replied: “Agreed”.

  4. As will become apparent, I consider that exchange quite significant. The applicant gave evidence that he was embarrassed and gathering his thoughts when he sent the first message when he woke up. He thought it was a silly thing for him and the complainant to have done, and wanted to put it behind them. [47]

    47. Tcpt, 25 February 2021, pp 151(39) – 152(09).

  5. According to the complainant, she stayed home that day and sat on the sofa. She said that she did not go to work because she was “confused and upset about what had happened” [48] and instead stayed at home. [49] Noting she had a missed call from Jake, she invited him over to keep her company, and they watched movies, but she did not tell him what had occurred, as she did not think of him as the kind of friend in whom she would confide. [50] The applicant came home around lunch time, poured himself a glass of whiskey and sat down on the sofa with them. She engaged with him only to say “hello”, and he left after about an hour. She said she felt very anxious around him at the time, violated and sad. [51]

    48. Tcpt, 23 February 2021, p 36(35-39).

    49. Tcpt, 23 February 2021, p 38(17-21).

    50. Tcpt, 23 February 2021, p 38(27-29).

    51. Tcpt, 23 February 2021, p 38(44-45).

  6. According to the applicant, he felt awkward around her that day and felt things were a little tense, but did not speak with her about the events of the night before. [52]

    52. Tcpt, 25 February 2021, p 153(29-32).

  1. On 19 March, the complainant went to work. [53] She became upset and her colleague Kim saw her crying and asked what she was upset about. [54] The complainant told Kim that she went to bed and woke up with the applicant between her legs performing oral sex. [55] When the complainant spoke with Kim she was sure she was asleep, but she was not sure why it had happened and what started it. [56] Kim offered the view that the complainant was still processing the whole incident. [57] Kim told the complainant, “you need to report this. This is assault”. [58] The complainant gave evidence: [59]

“At that stage, again I was still quite confused. I was struggling with the fact that I lived with this man and I also considered him to be a friend. I didn’t know what the best path to take was, but I also definitely wanted to speak to him more about it before making any steps like that”.

53. Tcpt, 23 February 2021, p 39(03-04).

54. Tcpt, 23 February 2021, p 39(06-21).

55. Tcpt, 23 February 2021, p 39(25-35); 24 February 2021, pp 114(21) – 115(31).

56. Tcpt, 23 February 2021, p 65(32-34).

57. Tcpt, 24 February 2021, p 115(07-08).

58. Tcpt, 23 February 2021, p 39(32).

59. Tcpt, 23 February 2021, p 39(41-44).

  1. She went home that evening and went straight to her room, feeling extremely uncomfortable being around the applicant. [60]

    60. Tcpt, 23 February 2021, pp 39-40.

  2. On 20 March, the applicant sent the complainant a text message: “Hey, are you alright? Seems like you’ve been a bit down recently. Mum stuff?”. There was no response. According to the complainant, she did not open or respond to the message, and deleted the entire thread, because she did not want to communicate with the applicant. [61]

    61. Tcpt, 23 February 2021, p 40.

  3. On 21 March, there was a lengthy exchange of text messages between them. At 10:27 am, the applicant sent: “Silence..”. The complainant responded at 10:44 am, “Nah I’m all good”. At 10:46 am the applicant replied: “Sure?”, followed by “Are we okay?”. At 11:34 am, the complainant replied:

“I’ll be honest, I’m a little bit weirded out by the other night, the more I think about it and when I look back on the messages you sent me before hand and the timing of it all I know I was 100% asleep when whatever went down happened. I don’t really wanna get into it all or talk about it now or again in the future because I’m uncomfortable about it but it’s something that cannot happen again.”

  1. At 11:37 the applicant sent: “Babe you weren’t asleep when it happened.. do you think it was an unconsentual situation or something?”, and then “And what are you referring to about messages beforehand?”. The complainant replied at 11:43 am:

“I was asleep shaky. It was 1.5h after I went to bed. If you look back on your messages you sent me it was something along the lines of can you let me [know] your ok, come and watch a movie with me, Ok good chat. No replies to anything because I was asleep. I’m confused with what happened, You need to understand how I am felling about this and respect it. I don’t want to make a huge deal of this I just want to know it’s something that won’t happen in the future”.

  1. The applicant replied at 11:49 am:

“This makes me feel really worried. I don’t know how to clarify enough to you how very much awake you were when stuff went down. You even wanted me to have sex with you but I said na I’m going to bed. Like I remember quite a lot of it. I would never ever do anything unconsentual, or to someone sleeping. I’m really sorry that you feel shitty about it, I just want to reassure you that at the time it was a 2 way thing. And no I don’t want it to happen again either, it was a silly thing to do”.

  1. At 11:53 am, the complainant sent:

“Ok well I am not going to go over the same thing. You sent me a txt saying you don’t know what happened so it’s amazing you know what happened now. Either way you should never of come to my room, we will leave it as that and I am happy that it will not repeat itself”.

  1. The applicant answered at 11:56 am:

“[Complainant] where is this distrust coming from? It doesn’t seem fair of what you’re accusing me of, based on the fact that you can’t remember a single thing? You really can’t remember even a flashback?”.

  1. The complainant replied at 12:00:

“I am not trying to cause anything, you asked me if we are ok and so I am just letting you know what’s going on. As the days have gone by I have had flash backs and looking at the times of when it accrued and the messages you sent and for how drunk I was I know there’s no way I was asleep. I remember sitting in your room with you I remember being sick before I got into bed and I remember sending a txt before I went to sleep to my friend. The timings prove I was asleep and there was no invitation from me to you to come to my room at any point”.

  1. She followed this with “I really don’t want to blow this up to anything more than it is”, “I just wanted to let y know how I feel and for it to not happen again”, and “I know there’s no way I wasent asleep*”. The applicant responded at 12:01: “You were asleep”, and “Then when I came to check on you, you woke up.” The complainant replied at 12:02: “Oh and that’s when I consented? Shaky I don’t need to relive this”, and “I don’t remember waking up and consenting and I cannot say for sure that I didn’t. I don’t wanna go over this I just wanted to let you know what’s up”, and “So we will agree to disagree”.

  2. At 12:03 pm the applicant sent:

“[Complainant] you’re accusing me of rape based on you remembering nothing. I’m sorry you feel weird about it, but I’m sure you can imagine this is quite a shock to me. I’ll talk to you later.”

  1. At 8:23 pm the complainant sent to the applicant: “On way home you wanna go for a cig and a chat”, to which the applicant responded: “I’m working” and the complainant replied “Ok”.

  2. When asked about the text: “I don’t remember waking up and consenting and I cannot say for sure that I didn’t”, in cross-examination, the complainant gave this evidence: [62]

“Q.   When you sent that message, was it true that you couldn’t say for sure that you didn’t consent?

A.    I think you need to appreciate that I lived with this man and he was a friend of mine and it was the most uncomfortable conversation I’ve probably ever had to have with someone and put to them. I did it probably for my own benefit of having to see him and not going straight direct into it.

HER HONOUR

Q.   The question is, when you wrote, ‘I cannot say for sure that I didn’t’, was that the truth?

A.   No, because beginning, I don’t remember waking up and consenting. That is my full belief and I do not remember. I was asleep. And I’ve said the later bit to make the conversation a little bit easier for myself.”

62. Tcpt, 25 February 2021, p 81(36-49).

  1. According to Emma, on the evening of 21 March, she asked the complainant if everything was okay. [63] Later that evening they went to dinner and the complainant told Emma that she woke up to find the applicant, “going down” on her, [64] and that she made a call to someone to get him to leave. [65] Emma gave evidence that the complainant appeared upset, “a bit shaken” and “out of sorts”, but not terrified. [66]

    63. Tcpt, 24 February 2021, p 101(05-09).

    64. Tcpt, 24 February 2021, p 101(42-43).

    65. Tcpt, 24 February 2021, pp 101(49) – 102(01).

    66. Tcpt, 24 February 2021, p 102(15-17).

  2. On 23 March at 9:29 am the applicant sent the complainant a message and asked if they could have a chat. The complainant responded at 9:50, “Yeh course”, and that she would be home in about an hour. When she returned home she sat with the applicant in the garden; she said that he appeared to be very drunk. [67] It was his birthday. [68] Unbeknownst to the applicant, the complainant recorded the conversation on her phone. [69] What was recorded included the following:

    67. Tcpt, 23 February 2021, p 44(45-47).

    68. Tcpt, 25 February 2021, p 154(32-37).

    69. Tcpt, 23 February 2021, pp 46(41) – 47(01); 25 February 2021, p 154(43-44).

“C   Nothing’s going on, right? I’m not accusing you of rape or anything like that. That was pretty dramatic. But it was weird and it’s messed my head up completely.

A   Why has it messed your head up?

C   Because I was asleep. There was no way that I wasn’t. I don’t get why you came into my room in the first place.

A   Because I was checking on you.

C   Why did you need to check on me? I was asleep.

A   … do you remember the conversation we had? I was, like, scared that you were gunna, like, spew in your sleep.

C   No, I threw up before I went to bed. I said, I’m going to throw up, I put my fingers down my throat and then I went to bed.

A   Yeah. And I was like …

C   It was an hour and a half later.

A   Then I checked on you.

…

A   … I’ll tell you what I remember what happened …

C   OK

A   Don’t get me wrong, it’s fucking blurry …

C   It’s what?

A   … but the two things that I remember is that you …

C   OK. So what do you remember?

A   I don’t remember how it led to that. I remember coming to check on you. Then we started making out or something … on you. Um, I remember that you were being quite loud and I was scared of Em hearing ... um, like in a good way …

C   Right. (Laughing)

A   And I remember you wanting, wanting me to have sex with you … and then I went to bed.”

  1. They continued to argue about whether the complainant had consented and was an active participant.

  2. In his oral evidence, the applicant explained that when he had said “it’s fucking blurry”, he meant that they had been out drinking and he did not remember every detail. [70] He agreed that he said to the complainant “you were really drunk”, but that she did not appear to him to be “really drunk”, and that he was overwhelmed and confused and was grasping at straws as to why she did not remember anything. [71] He agreed that, although he had put it to her in a recorded conversation, she did not say “a thousand times” that she wanted him to do it, but that he just wanted to make it clear to her that there was consent. [72]

    70. Tcpt, 25 February 2021, p 156(10-12).

    71. Tcpt, 25 February 2021, p 156(17-29).

    72. Tcpt, 25 February 2021, p 157(17-32).

  3. After this conversation, the complainant went to her room and began to pack her bags as she had decided to stay elsewhere for the weekend. [73] The applicant again approached her, and she made a further recording of the conversation, [74] during which both parties appeared increasingly antagonistic. She then caught a taxi, and stayed with a friend Misha for two nights, in the course of which she told her friend about what had happened. [75] The following weekend, she visited Sophie’s home, where she broke down and started to cry and told Sophie what had happened. [76]

    73. Tcpt, 23 February 2021, p 48(26-29).

    74. Tcpt, 23 February 2021, p 48(37-41).

    75. Tcpt, 23 February 2021, pp 49(42) – 50(12), 55(05-08); 24 February 2021, pp 131(22-23), 134(03-18).

    76. Tcpt, 24 February 2021, pp 124(32) – 125(03).

  4. On 23 March at 12:04 pm, when on the way to Misha’s place, she received the following message from the applicant:

“Alright just [redacted]. When I left your room the other night you begged me to stay. But you were asleep? If you were it was very convincing. I’m truly sorry that you feel weird about it, but I’m afraid that’s the feeling of being blackout drunk, not my input. But I maintain that I could not have known you were asleep because you were encouraging me a lot. A LOT. What’s confusing to me is that you now [sic, know] my nature, and that I’m not someone who would do something like what you’re saying, which is making me think there’s something else influencing what you thought about the other night. All this being said, I’d prefer if we had very little to do with each other continuing on a result of this.”

  1. The complainant replied at 12:08 pm:

“You said when we spoke that you remember very little and it’s very blurry. The details you are now giving me are very detailed. I appreciate you want to protect yourself never once was the an attack [sic], it was to let you know I am not ok with what happened and I do not want it to happen again. [redacted] I remember everything clear as day for whilst I was awake and conscious and I am 99% sure that what happened was whilst I was sleeping. You didn’t deal with our conversation well, I was hoping it was going to do differently but such is life. I hope you have a good birthday I will be staying out tonight.”

  1. At 4:35 pm the applicant sent a further message:

“This is weighing on my mind far too much. I’m really sorry. And I’m sorry this has gone further than it needs to. And I’m sorry that you feel weird about the other night. Whilst I don’t agree with you, I don’t want to hurt you. You’re quite special to me [complainant], and I don’t want to be estranged to you in any way. Hopefully you might let me give a hug when I next see you. I think we get on really well so I’s [sic, I’d] like to get past this if you’re willing. X”

  1. On the evening of Monday 25 March, the complainant returned to the Waterloo house, at a time when she knew Emma would be home. [77] She told Emma about her conversations with the applicant and that she was feeling uncomfortable. [78] Emma said that she wanted to speak with the applicant about it. [79] Emma entered the applicant’s bedroom. [80]

    77. Tcpt, 23 February 2021, p 53(09-12).

    78. Tcpt, 23 February 2021, p 53(16-19).

    79. Tcpt, 23 February 2021, p 53(21-28).

    80. Tcpt, 23 February 2021, p 53(37).

  2. According to Emma, the applicant told her that the intimacy was consensual and that he entered the complainant’s room to check on her, and seemed really shocked at the suggestion that it was not. [81] After this conversation, Emma, the applicant and the complainant had a short discussion in which Emma asked the applicant to move out. [82] He moved out of the Waterloo house within the next week. [83]

    81. Tcpt, 24 February 2021, p 110(04-06).

    82. Tcpt, 23 February 2021, pp 53(42-48); 24 February 2021, pp 106(04-08); 25 February 2021, p 158(08-17).

    83. Tcpt, 23 February 2021, p 54(38-41).

  3. The complainant had no further contact with the applicant. [84] On 26 June 2019, she made a complaint to police. In September, she told Chloe that she may need to speak with police about the night of 17 March and that she woke up and found the applicant in her bed “going down on her”. [85] On 11 September 2019, the applicant was contacted by police and on 16 September he voluntarily attended the police station, where he was arrested and charged.

    84. Tcpt, 23 February 2021, p 56(36-42).

    85. Tcpt, 24 February 2021, p 130(40-45).

  4. The applicant had no criminal convictions and had never been charged with, or the subject of any allegations to police in relation to, any sexual offence or any offence against a women. Evidence of his good character was given by three witnesses, including that he was “very honest”, and that the allegations were completely inconsistent with their knowledge of him. [86]

    86. Tcpt, 25 February 2021, pp 198(04), (27-30); 201(35-37); 204(12-18).

Ground 1: unreasonable verdict

  1. The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen,[87] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows:

“[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]–[14], the Court stated the approach to be adopted was that laid down in M v R (1994) 181 CLR 487; [1994] HCA 63 at 492–494, namely that the Court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v R (2002) 213 CLR 608; [2002] HCA 53 at [59].

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

[86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]–[48].”

87. (2017) 94 NSWLR 476; [2017] NSWCCA 78.

  1. In considering this ground, an appellate court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. [88] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [89] These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay (footnotes omitted): [90]

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

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

88. M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13] (French CJ, Gummow and Kiefel JJ) (“SKA”).

89. Atai v R [2014] NSWCCA 210 at [134] (R A Hulme J).

90. (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”).

  1. Nonetheless, the concluding words of that passage, and the authority cited for it, [91] show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Baden-Clay does not detract from the propositions that:

  1. the appellate Court must make its own independent assessment of the evidence, and if after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside;

  2. in most cases a doubt experienced by an appellate Court will be a doubt which a jury ought also to have experienced, and only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt may the Court conclude that no miscarriage of justice occurred;

  3. while it is not sufficient, to render a verdict unreasonable, that a review of the evidence shows only that it was possible for a jury to reach a different conclusion, it is also not sufficient, for a Court to conclude there was no miscarriage, that there was evidence on which a jury could convict: if after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

    91. M v The Queen (1994) 181 CLR 487 at 494-5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; see also Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

  1. These considerations apply, mutatis mutandis, to a verdict in a trial by judge alone. [92] However, in the context of a judge alone trial, the availability of reasons for a judge’s decision will inform consideration of whether it is unreasonable, because, unlike in a jury trial, the process of reasoning is exposed, [93] with the consequence that the reasons may reveal unreasonableness, or conversely explain a conclusion that might, absent reasons, have appeared unreasonable.

    92. Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [24] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); R v Holden [2014] NSWCCA 230 at [23]-[27] (Harrison J; Johnson and Garling JJ agreeing); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ); Smith v R [2019] NSWCCA 162 at [70] (Davies J, Hoeben CJ and Fagan J agreeing).

    93. Ford v R [2020] NSWCCA 99 at [53]-[56] (Brereton JA; Bellew and Lonergan JJ agreeing); cf Bell v R [2017] NSWCCA 207 at [20]-[25] (Bathurst CJ, McCallum and N Adams JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ), [81]-[83] (Gageler J).

  2. Thus the applicable principles, in the context of an appeal to this Court from a conviction by judge alone, may be stated as follows: [94]

    94. Ford v R [2020] NSWCCA 99 at [56] (Brereton JA, Bellew and Lonergan JJ agreeing).

  1. First, the question for the Court is whether it thinks that, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant was guilty. [95]

  2. Secondly, to address that question, the Court must make its own independent assessment of the sufficiency and quality of the evidence. [96]

  3. Thirdly, although it will not suffice to set aside the conviction if it appears only that it was possible on the evidence for the trial judge to reach a different conclusion, the conviction must be set aside if the Court decides that the trial judge should have had a reasonable doubt about the applicant’s guilt (in the sense that he or she must, as distinct from might, have entertained such a doubt), even if there was sufficient evidence in law to support it. [97]

  4. Fourthly, a doubt experienced by the Court will generally be a doubt which the trial judge ought also to have experienced, and if the Court is left in reasonable doubt after giving full weight to the primacy of the trial judge, it is only where the trial judge’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [98]

    95. M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

    96. M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14] (French CJ, Gummow and Kiefel JJ); Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84] (Bathurst CJ; Johnson and Fullerton JJ agreeing).

    97. M v The Queen (1994) 181 CLR 487 at 492-5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J; Gleeson CJ and Heydon J agreeing) (“Libke”); Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85] (Bathurst CJ; Johnson and Fullerton JJ agreeing).

    98. M v The Queen (1994) 181 CLR 487 at 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85] (Bathurst CJ; Johnson and Fullerton JJ agreeing); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ).

Application

  1. There is of course no dispute that sexual intercourse, in the form of cunnilingus, occurred. The sole issue is that of consent. Consistently with the principles stated above, the issue for this Court therefore is whether it was open (in the sense described in SKA and Libke) on the whole of the evidence for the trial judge to be satisfied, beyond reasonable doubt, that to the applicant’s knowledge the respondent was asleep and did not consent. For the reasons that follow, in my opinion it was not.

  2. As is not infrequently the case in such circumstances, only two witnesses can give direct evidence on that question, and their versions differ. As is also not infrequently the case, the accuracy of their honest recollection may be affected by the circumstance that each was to a substantial extent though not seriously intoxicated, that the events occurred late at night when they are likely to be tired, that (at least in the case of the complainant) the crucial events occurred after she had been asleep for a while and she returned to sleep almost immediately thereafter, and by their later “processing” and rationalisation of what transpired.

  3. It is well-established that in such circumstances, a preference for the prosecution evidence is not enough to support a conviction: the accused must not be convicted unless the trier of fact is satisfied beyond reasonable doubt of the truth of the complainant’s evidence, and even if the evidence relied upon by the accused is not positively believed, the accused must not be convicted if that evidence gives rise to a reasonable doubt about guilt. Where, as here, the accused has given evidence, the approach required of the judge of the facts is that embodied in the “Liberato direction”, [99] namely that:

  1. if the accused’s evidence is believed, the accused must be acquitted;

  2. if the accused’s evidence is difficult to accept but may nonetheless, as a matter of reasonable possibility, be true, the accused must be acquitted;

  3. if the accused’s evidence is disbelieved, then it should be put to one side, but the question remains, has the Crown, upon the basis of evidence that is accepted, proved the accused’s guilt beyond reasonable doubt?

    99. Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66; De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).

  1. Having reviewed the whole of the evidence, I am unable to prefer one version to the other. As it seems to me, none of the surrounding circumstances, nor the subsequent events, is irreconcilable with either version. There are minor indicia which slightly favour one case or the other. For example, the complainant’s account that she called Jake to get the applicant out of the room derives some corroboration from the record that such a call was made at 1:43 am. However, that is undermined by the circumstance that the applicant had already sent her messages at 1:41 and 1:42 am, having left her room – before she made the call to Jake.

  2. That the applicant was concerned about the complainant’s welfare tends to be confirmed by the messages he sent her at 12:34 am and 12:52 am.

  3. The text message exchange on the morning of 18 March seems to me consistent with the applicant’s version that the encounter had been broken off because he had a “moment of clarity”, and inconsistent with his having any belief that she was not a consenting party. The exchange is redolent of the flatmates in the cold light of morning wondering how the sexual encounter between them had surprisingly come about. The applicant’s account in those text messages appears accurate and frank, and the complainant’s account reveals a considerable measure of uncertainty as to what had transpired.

  4. The exchange on 21 March 2019 is also significant, for several reasons. First, the flavour of the exchange is that the applicant was genuinely surprised at the suggestion that the complainant was asleep and not a willing participant. Secondly, there is the complainant’s statement that “I cannot say for sure that I didn’t [wake up and consent]”. Thirdly, the complainant’s certainty that she was asleep appears to be a reconstruction from the text messages on the night in question.

  5. Next, the recorded conversations (which the applicant had no reason to suspect were other than private) are again suggestive that he is disbelieving, and affronted, at the suggestion that the complainant was not awake and a willing participant.

  6. The applicant’s account was therefore supported by his text enquiries of the complainant’s welfare on the night before their encounter; by his behaviour and account the following morning; by his denials when a different version began to emerge, and also by the evidence of his good character.

  7. Other matters which contribute to doubt about the complainant’s version include the absence until 21 March of any suggestion that she was asleep, as opposed to the presence of statements that she is having “weird flash backs” when her account is that she stopped a sexual assault by kicking the applicant and making a phone call; and the circumstance that after the encounter she quickly fell back to sleep, to awake to her alarm at 7:00 am, which seems unlikely if she had just experienced and fended off a sexual assault.

  8. The Crown submitted that the applicant’s evidence, while detailed as to the matters relied on to indicate consent, was otherwise vague as to the conversation that preceded it, what they were talking about when he first entered the room, the “discussion about kissing” before they began to kiss, and what (on his account) she was wearing. [100] However, the lack of recollection about the content of the conversation is hardly surprising, especially in the context where, as has been pointed out, both the applicant and the complainant were affected by alcohol and likely to be tired, to the extent that the complainant could not recall the subject matter let alone detail of the conversation in the applicant’s bedroom before she went upstairs to vomit. [101]

    100. Tcpt, 25 February 2021, pp 173-175.

    101. Tcpt, 23 February 2021, p 29(32-34).

  9. The trial judge, having appropriately given herself a Liberato direction, [102] rejected the applicant’s account for the following reasons: [103]

“Simply put and notwithstanding the evidence of good character, I do not accept the accused’s evidence that he followed the complainant up the stairs and watched her vomit, and then he had told her he would check on her. There was no basis for his asserted concern that would cause him to go up the stairs and open her closed door and wake her up. That the accused did, as he stated, is critically lacking in plausibility. I reject the submission that his evidence is sufficiently coherent, consistent and reliable and I do not accept it.

Simply put, there is no logical or plausible reason why he would follow the complainant up the stairs when she had left his bedroom. There was no plausible basis for him to hold concerns for her welfare when she did not reply to his initial messages. She had told him she was fine and was going to bed. Other than text, he did not call, he did not knock and he did not wait for a response. He had no reason to go upstairs and enter her bedroom. I do not believe the accused’s evidence and I put it to one side.”

102. Judgment tcpt, 3 March 2021, pp 19-20, 24.

103. Judgment tcpt, 3 March 2021, pp 26-27.

  1. Essentially, therefore, her Honour rejected his evidence as implausible, on the basis that there was no good reason for him to follow her upstairs when she left his bedroom to vomit, and no good reason for him to return later and enter her bedroom. I am afraid I am quite unable to share that view. It is clear enough that the relationship between the complainant and the applicant, although until then entirely platonic, was a close and caring one. Even if it was not, the idea that it is implausible that one flatmate, having been told by another that she was feeling unwell and was going to vomit, might accompany her to a bathroom while she did so, and later check on her welfare, involves a view of human nature that I do not hold. I see nothing implausible about the suggestion that in those circumstances he might say that he would come and check on her later, and that when she did not respond to text messages, he might do so. To my mind, it is much more likely that his text messages at 12:34 and 12:52 were a manifestation of genuine concern for her welfare, than, as the Crown would have it, a pretext for going to the complainant’s room in the early hours of the morning.

  2. Were this a civil case, I would have difficulty in being satisfied on the balance of probabilities that the complainant’s version was to be preferred to the applicant’s. That of course is not the test. As I have indicated, even if the applicant’s evidence is not affirmatively believed, he is entitled to an acquittal if the trier of fact considers that it might be true, in the sense that there is a reasonable possibility that it is true. In my judgment, there is at the least a reasonable possibility that the applicant’s account might be true, and thus a reasonable doubt as to his guilt.

  3. In those circumstances the remaining question is whether the doubt I entertain can be resolved by the trial judge’s advantage in seeing and hearing the evidence. [104] It is true that her Honour relied to some extent upon demeanour in accepting the complainant’s evidence. [105] However, her Honour properly down-played the significance of demeanour, observing that it was not “the only or even the most important factor in my decision”, [106] for reasons which her Honour there gave. More importantly, while demeanour played some role in her Honour’s acceptance of the complainant, it does not appear to have played any role in her Honour’s rejection of the applicant: that rejection was based, as explained above, on her Honour’s view of the plausibility of the applicant’s account, a view which with great respect I am unable to share. As the Crown responsibly accepted in the course of the hearing of the appeal, plausibility not demeanour provided the basis for her Honour’s disbelief of the applicant, and in that respect the trial judge enjoyed no advantage over this Court.

    104. Gittany v R [2016] NSWCCA 182 at [112] (Basten JA; R A Hulme and Fagan JJ agreeing).

    105. Judgment tcpt, 3 March 2021, pp 27-30.

    106. Judgment tcpt, 3 March 2021, p 17.

  4. It follows that in my judgment, the reasonable doubt which, having reviewed the whole of the evidence, I entertain as to the applicant’s guilt, is one which the trial judge ought to have entertained, and that in the relevant sense the conviction was unreasonable. The sole ground of appeal is therefore made out.

Conclusion

  1. It was for those reasons that, at the conclusion of the hearing, I joined in the orders of the Court that:

  1. Leave to appeal be granted;

  2. The appeal be allowed;

  3. The conviction of the applicant in the District Court on 3 March 2021 and consequent sentence imposed on 2 July 2021 be quashed;

  4. There be substituted a verdict of acquittal; and

  5. The applicant be released from custody forthwith.

  1. GARLING J: I joined in the orders of the Court which were made on 13 April 2022, for the reasons which follow.

  2. In setting out my reasons, I adopt, gratefully, the detailed description of the trial proceedings below and on appeal as set out in the judgment of the presiding Judge.

  3. As the trial Judge recognised, this was a case in which it was appropriate for a direction to be given in accordance with Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66. It is important to note, as the High Court made clear in Murray v The Queen (2002) 211 CLR 193 at 213; [2002] HCA 26 at [57], that it is not appropriate to frame the issue for determination in a trial such as this as involving a choice between conflicting prosecution and defence evidence – i.e., preferring one version of events over another. That is because the issue is always whether the prosecution has proved each of the elements of the offence beyond reasonable doubt.

  4. The Liberato direction is an approach to the evaluation of conflicting evidence of the kind which existed in this case. But it is no more than an approach which leads to the ultimate question of whether the prosecution has proved its case beyond reasonable doubt.

  5. Here, the accounts of the only two witnesses to the disputed events upon which the prosecution relied to constitute the offence were those of the complainant and of the applicant. There was no dispute that sexual intercourse had taken place.

  6. However, in order to obtain a conviction, the prosecution was obliged to prove, beyond reasonable doubt, not only that sexual intercourse occurred, but that the complainant did not consent to the sexual intercourse, and that the applicant knew that she did not consent. These last two elements were in dispute in the trial.

  7. The complainant gave a sworn factual account of the events of the evening in question. It was an account which was generally consistent with some but not all of the contemporaneous accounts or comments which she made either by text message or in conversation. The trial Judge was impressed with the complainant’s demeanour but did not rely upon that as a circumstance which assisted her to decide if the prosecution had proved all of the elements of its case beyond reasonable doubt, namely, those relating to the absence of consent on the part of the complainant, and the existence of knowledge of that absence of consent on the part of the applicant.

  8. The applicant also gave a sworn factual account of the events of that evening. It was also an account which was also generally consistent with his text messages and the reasonably contemporaneous accounts which he gave. The effect of his evidence was that the complainant had given her consent to the sexual intercourse. Such evidence necessarily established both the objective fact, as well as his state of mind. In weighing up his evidence, the trial Judge was obliged, by law, to give weight to his previous good character both on the issue of whether his sworn account ought to have been believed and also whether he was unlikely to have committed the offence.

  9. Having read and considered all of the evidence, I reached the conclusion that the Crown failed to prove its case beyond reasonable doubt – that was because I was satisfied that the applicant’s account as to what had occurred could not be ignored as a reasonably possible version of the events of the evening in question. Because the applicant’s factual account could not be dismissed, but remained a reasonably possible version as to what occurred, the trial Judge must have had a doubt about whether the Crown had proved that the complainant did not consent to the sexual intercourse which occurred. It would follow that if the Crown had not proved this element of the offence, it could not prove beyond reasonable doubt that the applicant did not know that the complainant did not consent to the sexual intercourse.

  1. Because I have such a doubt, I also need to be satisfied that the undoubted advantage of the trial Judge in seeing and hearing the two witnesses give their evidence may not have been sufficient to resolve the doubt which I have. The trial Judge in her reasons did not rely on an assessment of demeanour to discount the evidence of the applicant in any way.

  2. In those circumstances, because I have such a doubt, so should the trial judge, and the applicant ought to have been acquitted at trial. For these reasons I joined in with the orders of the Court.

  3. HAMILL J: On 13 April 2022, I joined in orders allowing the appeal by Mr Frew and quashing his conviction for sexual intercourse without consent. I did so on the basis of my conclusion that the verdict of the trial judge was unreasonable and unable to be supported. On a close examination of the record of the trial, I entertained a reasonable doubt about the applicant’s guilt and was firmly of the view that the doubt I experienced could not be dispelled or explained by the advantages enjoyed by the trial Judge who saw the witnesses give evidence.

  4. As to the limitations on that advantage, and on the capacity of a single judge to make assessments based on the demeanour of witnesses, see the discussion of the cases such as Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Galea v Galea (1990) 19 NSWLR 263 and Prouten v Chapman [2021] NSWCA 207 by Leeming JA in Hodgson v R [2022] NSWCCA 72 at [95]-[97].

  5. I have now had the benefit of reading the draft reasons of Brereton JA. His Honour’s judgment largely encapsulates my reasons for experiencing a doubt as to the applicant’s guilt. I would not place a great deal of weight on some of the matters concerning the complainant’s conduct in the immediate aftermath of the alleged assault, such as her falling off to sleep and waking to an alarm several hours later. The ways that a person may react to a sexual assault, especially of the kind alleged in this case, are unknowable and unpredictable. [107]

    107. Cf Maughan v R [2020] NSWCCA 51 at [99]; Rao v R [2019] NSWCCA 290 at [98]; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [73].

  6. On the other hand, the exchange of text messages between the parties, which Brereton JA emphasises at [21]-[39], raises significant doubts both as to proof (beyond reasonable doubt) of non-consent and proof of the applicant’s state of mind. While the issue of recklessness was raised, the prosecution’s case at trial was clearly that the applicant knew the complainant was asleep and did not consent. So much is clear from the following cross-examination:

“Q. I suggest to you that [the complainant] wasn’t awake when you entered the bedroom and at no point did she wake up.

A. I deny that.

Q. You crept into the bedroom so as not to wake her. Do you accept that?

A. No, I don’t.

Q. You opened the door and you closed it behind you so you could create some privacy. Do you accept that?

A. Not in the way you’re contextualising it, no.

…

Q. You were looking for some physical intimacy.

A. No.

Q. You approached her while she was sleeping and you put your head between her legs.

A. No.

Q. You performed oral sex upon her while she was sleeping.

A. No.

Q. You knew she was asleep.

A. No.

Q. You didn’t turn your mind to whether she was consenting to that act of cunnilingus.

A. Not true.

Q. There was absolutely nothing about this situation which could have given you the impression that she was consenting.

A. Absolutely not true.” [108]

108. Trial Tcpt, 25 February 2021, pp 177 – 178.

  1. There was nothing inherently implausible in the applicant’s denials in his evidence and his account receives some support in the text message exchange. I am unable to rule out the reasonable possibility that his evidence was true.

  2. Having made those brief observations, I am generally in agreement with the reasons provided by the presiding Judge.

**********

Endnotes

Amendments

12 August 2022 - Correct typographical error in paragraph (2) of Headnote.

Decision last updated: 12 August 2022

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