Hayne v R

[2022] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hayne v R [2022] NSWCCA 11

Hearing dates:

29 November 2021

Date of orders:

14 February 2022

Decision date:

14 February 2022

Before:

Bathurst CJ at [1]
Harrison J at [2]
Wilson J at [110]

Decision:

(1)    Grant leave to the appellant to appeal on grounds 1 and 3.

(2)    Allow the appeal on those grounds.

(3)    Quash the appellant’s convictions and order a new trial.

(4)    Grant leave to appeal on ground 2 but dismiss that ground.

(5)    Dismiss ground 4.

(6)    List the proceedings for directions in the District Court at 9.30am on 18 February 2022.

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether erroneous direction of trial judge as to the legal test in s 61HA(3)(c) of the Crimes Act resulted in a miscarriage of justice – whether admission of evidence in new trial proceedings under s 306I of the Criminal Procedure Act was unfairly prejudicial – adducing of evidence excluded at pre-trial under s 130A of the Criminal Procedure Act – admissibility of evidence relating to sexual experience under s 293 of the Criminal Procedure Act – whether verdict of the jury was unreasonable

Legislation Cited:

Crimes Act 1900 ss 61HA, 61I, 61J, 61Q

Criminal Appeal Act 1912 ss 5F, 6

Criminal Procedure Act 1986 ss 130A, 293, 306I, 306J

Evidence Act 1995 ss 41, 137, 142

Cases Cited:

Bazouni v R [2021] NSWCCA 256

Decision Restricted [2021] NSWCCA 201

GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7

Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43

Lazarus v R [2016] NSWCCA 52

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

O’Sullivan v R (2012) 233 A Crim R 449; [2012] NSWCCA 45

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

Priday v R [2019] NSWCCA 272

R v Dirani (No 8) [2018] NSWSC 1000

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Category:

Principal judgment

Parties:

Jarryd Hayne (Appellant)
Regina (Respondent)

Representation:

Counsel:
T Game SC and C O’Neill (Appellant)
B Hatfield and J Sfinas (Respondent)

Solicitors:
Madison Marcus Law Firm (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/355835

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW at Sydney

Jurisdiction:

Criminal

Date of Decision:

22 March 2021

Before:

Syme DCJ

File Number(s):

2018/355835

Judgment

1. Bathurst CJ: I agree with the orders proposed by Harrison J and with his Honour’s reasons.

2. Harrison J: On 22 March 2021, Jarryd Hayne was found guilty by a jury of two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The counts were statutory alternatives (pursuant to s 61Q(1) of the Act as it was at that time, to two counts of aggravated sexual intercourse without consent contrary to s 61J of the Act. The verdicts were reached at a second trial, the jury in the first trial having been discharged on 7 December 2020 when they were unable to reach a verdict.

3. The appellant appeals against his convictions, but not against his sentence, on the following grounds:

Ground 1: It was an error to direct the jury in the following terms in relation to the mental element of the offence:

1. That recklessness would be satisfied by proving that the appellant may have realised there was a possibility the complainant was not consenting but went ahead anyway;

2. That it should consider if it was satisfied that there were no reasonable grounds for believing that the complainant was consenting (rather than whether the appellant had no reasonable grounds);

3. That it should consider as a precondition that the appellant honestly believed the complainant was consenting when determining whether the Crown had proved knowledge on the basis of no reasonable grounds;

4. That proof that the accused knew that the complainant was not consenting was the same as proof that the accused did not honestly believe that she was; and

5. That it was open to the jury to convict the accused on the basis of inadvertent recklessness.

Ground 2: It was an error to refuse the applicant’s application pursuant to s 306I(6) of the Criminal Procedure Act 1986 to delete evidence of an outburst by the complainant from the appellant’s first trial.

Ground 3: It was an error to revisit and overturn the ruling from the appellant’s first trial allowing the appellant to adduce evidence of the complainant’s messages with Stephen Page on 30 September 2018.

Ground 4: The jury verdict in respect of both counts was unreasonable.

Summary of issues at trial

4. The complainant’s evidence was given by way of a video recording of her evidence at the first trial on 24 and 25 November 2020, pursuant to s 306I of the Criminal Procedure Act. The complainant contacted the appellant on 17 September 2018, saying “You are absolutely gorgeous x”. The complainant and the appellant had never previously met. Following this, they engaged in relatively constant communication with each other, including communication of a sexually explicit nature.

5. On 30 September 2018, the appellant was in Newcastle, near the complainant’s home, on a buck’s weekend. He arranged with the complainant to go to her house on his way back to Sydney. It was the Crown case that the appellant went to the house where he inserted his finger in the complainant’s vagina (Count 1) and performed oral sex upon her (Count 2), in each case without consent knowing that she was not consenting. The Crown alleged that in the course of performing these sexual acts the appellant recklessly caused actual bodily harm by injuring the complainant’s labia.

6. The complainant’s account of what physically occurred between them was not in dispute: the appellant agreed that he put his finger in the complainant’s vagina and that he performed oral sex. However, he maintained in response to the Crown case that the complainant consented to both acts and accordingly that he did not know that she was not consenting. It will be necessary to refer in more detail to the facts and the events of the trial later in these reasons.

Ground 1

7. Section 61I of the Crimes Act provides as follows:

61I Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

8. The Crown was required to prove that the appellant knew that the complainant was not consenting. Section 61HA(3) of the Crimes Act was at the relevant time (see now s 61HE(3)) in these terms:

(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

9. It was therefore open to the Crown to establish that the appellant knew that the complainant was not consenting by proving that he knew that she did not consent to the sexual intercourse, or that he was reckless as to whether she was consenting, or that he had no reasonable grounds for believing that she was consenting. The Crown relied on all three of these ways, as is evident from the Crown’s opening to the jury on 8 March 2021 and also from the Crown’s closing submissions to the jury on 16 March 2021.

10. In due course, her Honour provided the jury with comprehensive oral directions about the element of knowledge. These oral directions were supplemented by written directions that had been provided to the jury in advance of her Honour’s summing up. Those written directions contained the following with respect to the element of knowledge:

“The Crown may establish the element that the accused knew the complainant was not consenting by either:

(a) He actually knew that she was not consenting; or

(b) If he did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented.

The Crown may establish the element that the accused was reckless as to whether she was consenting, by proving:

(a) that he may have realised there was a possibility she was not consenting but when [sic] ahead anyway; or

(b) that he failed to consider whether she was consenting or not even though the risk that she was not consenting would have been obvious had he turned his mind to it.”

11. The appellant submitted that these directions were erroneous in several respects.

12. First, it was an error to instruct the jury in the written directions that recklessness would be satisfied merely by proving that the appellant “may have realised there was a possibility she was not consenting but when [sic] ahead anyway”. The appellant contended that proof of a mere possibility that he realised there was a possibility the complainant was not consenting was insufficient: in order to prove knowledge on the basis of recklessness, the Crown was required to establish that the appellant in fact realised that there was such a possibility that the complainant was not consenting, not simply that there was a possibility that he did so, but proceeded in any event.

13. Secondly, the appellant submitted that it was an error to direct the jury that “[t]he Crown may establish the element that [the appellant] knew the complainant was not consenting by [establishing] either … If he did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented”. Her Honour’s oral directions repeated this erroneous formulation. The appellant submitted that these directions about the absence of reasonable grounds were wrong because they asked the jury to consider the existence or otherwise of reasonable grounds instead of what the appellant himself might have believed in all of the circumstances in which he found himself: Lazarus v R [2016] NSWCCA 52 at [156]; O’Sullivan v R (2012) 233 A Crim R 449; [2012] NSWCCA 45 at [126].

14. In her oral directions to the jury on this issue, her Honour said, “Either he actually knew the complainant was not consenting or even if the accused believed at the time that the complainant consented, he had no reasonable grounds for believing that she had consented to the sexual intercourse” [Emphasis added]. The appellant submitted that even though these directions were correctly formulated, they were insufficient to ameliorate or correct the error entrenched in the written directions provided earlier. This was particularly so given her Honour’s exhortation at the time they were provided to the jury that they were “to apply the law as I have advised you and as is summarised in the written directions that I have given you”. The appellant emphasised that the written directions were taken into the jury room to be considered during deliberations over the following three days and that it can be assumed they were given prominence accordingly.

15. Thirdly, the appellant complained that both her Honour’s oral and written directions erroneously inserted a pre-condition of honesty to the question of whether the Crown had proved knowledge on the basis that the appellant had no reasonable grounds to believe that the complainant was consenting. In doing so, her Honour misstated the test and reversed the onus of proof.

16. Her Honour’s oral directions were relevantly as follows:

“On the other hand, you may decide on the basis of the evidence led at the trial that the accused might have believed the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether the accused honestly held that belief and if so whether the Crown has proved beyond reasonable doubt that there were no grounds for the accused to believe that the complainant consented. You will consider these matters based on factual findings as to what happened in the bedroom.

Therefore, the Crown must prove beyond reasonable doubt one of two facts before you can find the accused guilty. Either that the accused did not honestly believe that the complainant was consenting, or in the alternative, even if he did have that honest belief in consent there were no reasonable grounds for believing that the complainant was consenting. It is for the Crown to prove that the accused had a guilty state of mind. It must therefore eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that she was consenting.

Unless you find beyond reasonable doubt that the Crown has proven that there was no such reasonable possibility then you would have to find this third element of the offence is not made out and return a verdict of not guilty to the charge.” [Emphasis added]

17. The appellant submitted that her Honour’s directions in these terms suggested that he had an onus to establish that he had an honest belief that the complainant was consenting: the inclusion of the word “honest” in the pre-condition is said to have invited scrutiny of the logic and genuineness of the appellant’s belief. He submitted that the repeated insertion of this pre-condition in both the oral and written directions, combined with the cumulative effect of the references to what the appellant “might have believed” or “may have realised”, undermined her Honour’s other directions that the onus was on the Crown to prove that the appellant had a guilty state of mind. The appellant submitted that there is a real risk that the jury would have considered that his honest belief that the complainant was consenting was a pre-condition to an acquittal.

18. Finally under this ground, the appellant argued that her Honour was in error to direct the jury that it was open to them to convict him on the basis of inadvertent recklessness. The appellant submitted that the direction had the effect of diluting the burden of proof because the Crown was given yet another path to securing his guilt. He maintained that the direction, although wholly in accordance with the suggested direction in the Bench Book, was “misleading and productive of confusion such that a miscarriage of justice arises”.

19. The appellant asserted that the terms of the direction that her Honour should have given in relation to the element of knowledge are as follows:

“There are three alternative ways that the Crown can prove the mental element of the offence:

1. By establishing the accused knew that the complainant did not consent to the sexual intercourse;

2. By establishing the accused was reckless as to whether the complainant consented to the sexual intercourse; or

3. By establishing that the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse.

For the purpose of deciding whether the Crown has proved the mental element of the offence in any of the three ways above, you must have regard to all the circumstances of the case including any steps taken by the accused to ascertain whether the complainant consented to the sexual intercourse. You must disregard any self-induced intoxication of the accused.

Recklessness

You may find that the mental element of the offence has been proved on the basis of recklessness if you are satisfied beyond reasonable doubt that the accused was aware [i.e. realised] there was a possibility that the complainant was not consenting and proceeded to have sexual intercourse anyway.

No reasonable grounds to believe the complainant was consenting

You may find that the mental element of the offence has been proved if you are satisfied beyond reasonable doubt that the accused in all the circumstances in which he found himself had no reasonable grounds to believe the complainant was consenting.”

20. The Crown’s general response to these contentions was as follows. First, there was no issue raised at the trial in relation to any of the issues now relied upon by the appellant and no redirection was sought. The fact that no redirection was sought militates against the interpretation for which the appellant now contends for the first time in this appeal. Secondly, her Honour was not asked for a ruling so there was no error of law. Accordingly, the appellant must establish a miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act 1912: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72].

21. Rule 4.15 applies and the appellant requires leave. That proposition is not controversial.

22. The Crown submitted that the interpretation contended for by the appellant is one that “does not naturally arise and would not have been likely to occur to the ordinary reasonable juror”. The Crown submitted that the words “may have” were merely introductory to the contingency of the appellant having had the state of mind identified (advertent recklessness) rather than detracting from it or introducing some lesser form of proof in relation to it. The Crown maintained that, while the written directions differed in the use of those introductory words, they were to substantially the same effect.

Consideration – Ground 1

23. Notwithstanding Mr Game’s expansive analyses in support of this ground of appeal, it seems to me to be capable of determination on a narrow issue.

24. The case was left to the jury in ways that included recklessness. So much was conceded in this Court by the Crown if it were not otherwise apparent from the way the case was conducted below. The Crown addressed the jury in this respect as follows:

“The Crown also say that if you find it proved beyond reasonable doubt that [the complainant] did not consent and that the incident happened as she described it and not as the accused described it, then the Crown say you will also find it proved beyond reasonable doubt that his state of mind was a guilty one. In fact, as I said earlier, in his own evidence the accused did not suggest to you otherwise. So the Crown say those two findings follow each other as a matter of simple and inescapable logic.

The Crown’s submission is there is simply no room for a third way in this trial where you accept [the complainant] was not consenting but find the accused did not have a guilty state of mind because he himself accepted that [the complainant] said, ‘No,’ and, ‘No, Jarryd,’ and, ‘Jarryd, stop,’ then he would have positively known that she was not consenting.

But as I said earlier, the Crown does not have to prove actual knowledge, recklessness will also suffice. The Crown can prove recklessness in either of two ways, by proving that the accused simply failed to consider whether or not [the complainant] was consenting and just went ahead with each act of sexual intercourse, even though the risk that [the complainant] was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it. Or the Crown can prove recklessness by proving that the accused realised the possibility that [the complainant] was not consenting but went ahead regardless.

The Crown says when you consider all the evidence, including the accused’s own admission on the telephone intercept material that the complainant was filthy with him when she found out a taxi was waiting outside, and that that occurred before sexual intercourse happened then he was at least reckless as to [the complainant’s] consent, and either of those states of mind are easily made out on the evidence if you accept [the complainant’s] account.

The final way the Crown can prove the accused had a guilty state of mind in relation to consent is by proving that even if the accused believed or may have believed [the complainant] was consenting, he had no reasonable grounds for believing that she did consent. Once [the complainant] had told him, ‘No’, repeated that several times, refused to let him kiss her, retreated away from him up the bed, told him, ‘No, Jarryd,’ and, ‘Jarryd, stop,’ what possible reasonable grounds could he have had to believe that she was consenting? The Crown’s short answer to that question is no.”

25. That passage became the subject of specific questioning of the Crown in this Court by the Chief Justice as appears from the following extract:

“HATFIELD: Yes, it was primarily on the [basis that the complainant said] ‘no’ but I think it was left open on recklessness.

BATHURST CJ: Which means those directions are of some importance.

HATFIELD: Yes, and whether there’s a distinction between the advertent and the inadvertent recklessness might be available but I concede it’s probably--

BATHURST CJ: But recklessness was squarely in the mix.

HATFIELD: Yes.

BATHURST CJ: Yes, thank you.

HATFIELD: I have to acknowledge that, yes.”

26. In circumstances where the Crown continued to rely upon an alternative proposition, that the appellant’s guilt could be based upon his having been reckless as to whether the complainant was or was not consenting, the accuracy of the impugned direction necessarily assumes a corresponding importance. There is in my view a significant difference between satisfaction merely that the appellant may have realised there was a possibility that the complainant was not consenting and satisfaction that he in fact realised, or in terms of the proposed direction “was aware”, that she was not. The terms of the direction should have excluded any room for doubt that it was the appellant’s realisation or awareness of the relevant possibility that was important, not some lesser theoretical level of inquiry about whether he may have been aware. For example, as the Chief Justice also emphasised in the course of an exchange with Mr Game, the impugned direction went directly to an element of the offence. It also contradicted her Honour’s oral directions on the same topic. I also do not accept that the words “may have” as used by her Honour in the written directions were merely introductory to the contingency of the appellant having the state of mind identified. The words were directly referable to the jury question concerning the appellant’s state of mind about which they were required to be satisfied. The direction complained of had the capacity to affect the jury’s assessment of that question so that it is not possible to say that no substantial miscarriage of justice has actually occurred.

27. In the same way, her Honour's reference to the requirement that the jury should be satisfied that there were no reasonable grounds for believing that the complainant was consenting, in contrast to their satisfaction that the appellant had no reasonable grounds for that belief, diverts attention from the appellant's belief in favour of some other, more general, inquiry. This is significant as the subject matter of the jury's consideration at this point is the appellant's state of mind, a matter that is central to his criminal culpability.

28. In forming my view that it is not in the circumstances of this case possible to say that no miscarriage of justice has occurred, I am not unmindful of observations of the kind made by the majority of the High Court in Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [23] dealing with the availability of the proviso:

“But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed.”

29. The position is that each case must be considered by reference to the particular facts: Bazouni v R [2021] NSWCCA 256 at [197]; Priday v R [2019] NSWCCA 272 at [78], [81]-[82].

30. In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, referred to in Priday at [78], the majority said this at [16] and [57]:

“[16] The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead.

…

[57] A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the ‘drugs’ were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.”

31. In Bazouni at [197], Button J said this:

“[197] … the correct explanation of every element of an offence is certainly central to trial by jury. Having said that, as senior counsel accepted, it is not the law that the proviso can never be applied in a case in which an element has been wrongly explained, to the detriment of an accused. Each case will turn on its own facts, the disputed elements at trial, and the evidence: Kalbasi at [16], [55], and [60].”

32. The question of the relationship between the application of the proviso and a misdirection going to a specific element of the offence was the subject of the Crown’s frank concession in this Court as follows:

“If your Honours are against me on perhaps various permutations which could come out of that that make it hard to address the proviso, we say that certainly with respect to demonstrating a miscarriage on any of those grounds, perhaps ground 1, if your Honours consider there’s a substantial misdirection on a question of law, then it’s difficult, I concede, to see where there’s room for the proviso.”

33. That concession is not decisive but is, in the circumstances of this case, a matter to which significant weight should be given.

34. As will be apparent, the Crown continued to rely on recklessness as a basis for the appellant’s culpability. It cannot be known how the jury reasoned to its guilty verdicts. It would in my view have been a miscarriage of justice if the appellant’s convictions were possibly the result of the jury having proceeded either to conclude that, whatever may have been his actual state of mind in this case, it was sufficient if he may have realised (that is to say, if there was a mere possibility that he realised) there was a possibility that the complainant was not consenting, or if in the jury’s view there were no reasonable grounds to believe that she was not consenting, as opposed to the jury specifically considering whether the appellant himself had no reasonable grounds for that belief.

35. It follows in my view that the appellant should be granted leave to argue this ground of appeal and the appeal on this ground should be allowed. It becomes unnecessary in the circumstances to consider the other specific ways in which the appellant sought to promote Ground 1. It follows that the appellant’s convictions should be quashed and a new trial ordered.

Ground 2

36. Section 306I(1) of the Criminal Procedure Act is in these terms:

306I Admission of evidence of complainant or special witness in new trial proceedings

(1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.

37. The complainant’s evidence at the appellant’s second trial was adduced by video recording of her evidence at the first trial in accordance with this provision. An application was made by the appellant that the complainant’s evidence be edited pursuant to s 306I(6) which relevantly provided as follows:

306I(6) If the court allows a record of the original evidence of the complainant or a special witness to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.

38. In particular, the appellant applied to have the following exchange during the complainant’s original evidence removed:

“Q   Would you just listen to the questions please because it--

A.   Yes, but you’re just trying to make me sound stupid.

Q.   No, no, please. Please.

A.   You are.

HIS HONOUR: Ms [complainant], please.

WITNESS:   It’s just irrelevant.

HIS HONOUR: Ms [complainant]--

WITNESS: It doesn’t mean--

HIS HONOUR: Ms [complainant]--

WITNESS: Like no means fucking no.

HIS HONOUR: --please, will you listen to me please?

WITNESS: Yeah, but like--

HIS HONOUR: Will you just stop and listen to me please. Mr Boulten has a job to do.

WITNESS: I know that but this is irrelevant. I sound like an idiot but he fucking knows what I’ve said.

HIS HONOUR: I just ask you to stop please. Will you just listen to the questions that are asked of you and answer the questions to the best of your ability. I’ll give you a break in a moment so that you--

WITNESS: Go for gold.

HIS HONOUR: Do you need a break?

WITNESS: No.

HIS HONOUR: If you just listen – everything is being recorded so it’s very important that everyone takes their turn. So if you just listen to Mr Boulten’s question, wait until he’s finished and then answer it to the best of your ability and then he’ll ask another question. All right.

CROWN PROSECUTOR: Your Honour, I think a break might be advisable at this point.

WITNESS: No, I’m good.

BOULTEN: No, your Honour, I don’t think it’s right that I should ask her when she’s upset.

WITNESS: I’m good. I’m good. I’ve seen it, I’m good.

HIS HONOUR: Ms [complainant], I’m going to ask you to step down and just wait outside the Court for a few minutes please.

WITNESS: You’re a fucking piece of shit.”

39. The appellant submitted at the second trial that this material was not admissible because it was unresponsive, inflammatory and unfairly prejudicial.

40. The trial judge rejected this application, with the exception of the words “You’re a fucking piece of shit” which she removed. Her Honour’s reasons for doing so were as follows:

“It certainly is the case that counsel, by his questions, his needling the complainant. This is frequently an accepted tactic by counsel to unbalance and agitate a witness. It seems to have had the desired effect in this instance. She was unbalanced, she did become upset.

Defence cannot seek to take advantage of part of the discombobulation without having the jury seeing the entirety of it. The jury are entitled to consider the complainant’s demeanour when assessing the content of her evidence.

Shortly after this small outburst, the judge intervened on behalf of counsel to little avail. The jury are entitled to consider what is in this exchange and what in this exchange the complainant was so very upset about. She was being presented with texts from an online acquaintance, who apparently disapproved of her meeting with the accused. The next response, ‘No means no’, is probative and responsive to what counsel was trying to get at, that is that she knew sex would be wanted and Smiles had told her so.

The suggestion in those questions is that another advised her against the invitation, therefore the invitation against such advice might ameliorate her position with respect to what she expected and whether she did ultimately consent. The only purpose of this set of messages would be to show the jury this and to seek to draw out a response about someone else thinking she should not invite him around. The response was drawn out, the response was emotional.

This had the effect that might have been predicted, of her becoming unresponsive to the extent that Mr Boulten then agreed with the Crown counsel that he did not think it right to ask her when she is upset. This was said before the jury, quite rightly I would observe. Apparently she then left the Court.

Her response at p 210.25 is, I am told, to the accused and should be edited, if the accused still seeks that it be edited. It is not evidence. ‘You’re a fucking piece of shit’, if that is what was said to the accused, is not evidence. It is, I suggest, just as or even more damaging to the complainant than to the accused, but if the accused seeks it I will order it be deleted. The balance ought remain.

The judge explained to all that everyone is upset and that counsel for the accused is doing what is his job, and that the complainant has had many hours of evidence and that it is late in the day. These are all matters that may affect the demeanour of the complainant and the jury will be required to consider it in due course, especially, as I might say, that the times of the day that the new jury might see this evidence might be a little different to the evidence when it was given.

The section that remains is not in my view unfairly prejudicial or even prejudicial to the accused. It shows an angry complainant. She was responding to questions put. There may be several reasons for that in the context of this case. The evidence is part of a whole and apart from that small comment, which counsel for the Crown and the accused can talk about whether they do or they do not really want it, you can make up your minds on that.”

41. The appellant contended in this Court that her Honour’s decision was wrong for the following reasons.

42. First, her Honour’s finding that the appellant’s counsel was “needling” the complainant by employing an “accepted tactic by counsel to unbalance and agitate a witness” was wholly inaccurate. Mr Boulten’s cross-examination was unexceptionable and in accordance with accepted standards. No objection to the cross-examination was taken by the Crown pursuant to s 41 of the Evidence Act 1995. There was no suggestion in any form during the cross-examination either by the trial judge or the Crown that defence counsel was “needling” the complainant. The appellant submitted that her Honour’s finding to this effect was not open to her.

43. Secondly, while a complainant’s distress when recounting an event may be admissible as evidence corroborating the happening of the events complained of, this was not the nature of the complainant’s distress during the exchange in question. Her distress did not arise from the subject matter to which the cross-examiner’s questions were directed, being the complainant’s messages with Monique Smiles, but arose instead because she felt stupid about contemplating going to see the appellant earlier in the evening of 30 September 2018 in circumstances where Ms Smiles told her that “it just would have been sex”. The fact that the complainant felt stupid and angry as a result of the questions being put to her in cross-examination was irrelevant to any fact in issue in the trial. The appellant submitted that the outburst was not adduced in response to any question. It did not answer the description of “evidence”. The appellant contended that it should not have been admitted.

44. Thirdly, even if the evidence were otherwise relevant, its probative value was outweighed by unfair prejudice to the appellant: s 137 of the Evidence Act. The complainant was obviously distressed, as evidenced by her use of the expression “no means fucking no”. This was referred to by the Crown in his final address to the jury. The appellant submitted that all of this was likely to engender considerable sympathy towards the complainant and disdain for him because his counsel “caused” the outburst. Moreover, these issues were compounded by the fact that the evidence was pre-recorded and was therefore being placed before the jury in what would have appeared to be a considered way, not, as at the first trial, as an unexpected, uncontrollable and regrettable incident that could not have been foreseen or avoided.

45. Moreover, the prejudice caused by this outburst was obviously recognised at the first trial in at least two respects that remained absent at the second trial. First, his Honour directed the jury in the following terms after the incident:

“HIS HONOUR: Sorry, ladies and gentlemen. It’s better that we continue with the questions when [the complainant] is a little more composed, so I’ll just have to ask you to leave us for a little while. I’ll get back to you as soon as we can.”

46. Secondly, when the jury returned to court in the first trial, the appellant’s counsel clearly recognised the damaging nature of what occurred and asked his Honour to “tell the jury that [he] didn’t do anything wrong” as he was “just doing his job”. As a result, his Honour directed the jury in the following terms:

“HIS HONOUR: Ladies and gentlemen, just before we get the witness back, I just wanted to say to you, it may well be obvious enough to you anyway, that [the complainant] was obviously somewhat stressed. She’s been in the witness box a while. I’m going to say to her if she wants another break, just to let me know. It obviously became far too much for her, but it’s very important to understand that Mr Boulten did nothing wrong. He’s doing his job, simply asking her the questions he’s obliged to ask her, and the frustration that she demonstrated was not because of anything Mr Boulten did wrong as it were. He’s just doing his job. I’ll endeavour to explain that to her when she comes back in and tell her if she needs another break, we’ll just give her one. Just bear with us for the time being. Thank you.”

47. At the second trial, these directions were edited out of the recording and her Honour did not direct the jury otherwise about how to approach the evidence containing the outburst. The evidence was admitted and left to the jury at the second trial without the steps taken to limit or eradicate the prejudice that were taken at the first trial. The appellant submitted that in circumstances where the probative value of the evidence was minimal and outweighed by unfair prejudice to him, it should not have been admitted.

48. When the appellant sought to have the evidence removed at his second trial, the Crown’s response, in opposing the application, was encapsulated in the following submission made at that time:

“[The] edit is not agreed. This passage of her evidence related to difficult documents, and the future jury ought to be able to see in full how she responded to being confronted with such documents. The assessment of her credibility extends beyond her specific answers, and includes her demeanour and manner of answering. [The] edit amounts to defence seeking to edit out the emotional responses of the complainant to difficult evidence. In relation to her answers being ‘non-responsive’, the answers were ultimately responsive to one of the central issues in the trial. In relation to the edit being proposed on the basis the answers were ‘non-responsive’, it is noted that on multiple other occasions the complainant’s answers were also non-responsive but without any corresponding request to edit that evidence.”

49. The Crown also emphasised that the issue to which the complainant was being directed in the questions leading up to the evidence objected to was the exchange of Instagram messages with Monique Smiles. That exchange had become an important part of the appellant’s response to the Crown case in two ways. First, the complainant had been warned by Ms Smiles that if she were to catch up with the appellant “it will only be for sex and you will feel terrible afterwards”. Secondly, the complainant did not complain to Ms Smiles about the injury to her vagina or non-consensual sex in her Instagram messages after the appellant had left. The complainant had never even met Ms Smiles in person but was someone with whom she communicated on social media. The complainant’s unequivocal response was to the effect that whatever she may have said to Ms Smiles did not mean that she consented to sex with the appellant.

49. The Crown maintained that the complainant’s demeanour at the time was relevant to the assessment of her credibility on this issue generally and that the jury would benefit from seeing the whole of the evidence in relation to this issue and how she responded to it.

Consideration – Ground 2

51. The relevant test for appellate review of a decision relating to the exclusion of evidence on the basis of relevance or under s 137 of the Evidence Act is one of correctness as identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: see, for example, Decision Restricted [2021] NSWCCA 201 at [28]-[29].

52. Her Honour’s decision was not wrong for the reason that she characterised Mr Boulten’s questions as “needling”. The description was no more and no less than her Honour’s attempt to summarise the tone of some of the cross-examination at the time. I accept that the description may not have been completely apt. However, the accuracy or otherwise of the expression is irrelevant to the present inquiry. It was made in a judgment that the jury obviously did not see. It was also a description that referred to a part of the complainant’s evidence in cross-examination that preceded or led up to the evidence complained of, which part the appellant’s counsel neither sought to exclude nor to which the Crown took any exception.

53. The complainant’s reaction was also not unrelated to the events at the centre of the trial. Her Instagram communication with Ms Smiles was a key plank of the appellant’s response to the Crown case. The believability of the complainant’s account, and her insistence that the sexual encounter was non-consensual, were directly attacked by reference to the nature and substance of her communication with Ms Smiles both before the sexual activity complained of and after it was alleged to have occurred. It is in my view incorrect to characterise the complainant’s reaction as irrelevant to any fact in issue at the trial simply because it appears to have been the result of feelings of stupidity or anger. The attack on the complainant’s evidence may well have caused her to reflect upon the wisdom of her communications with the benefit of hindsight and to react in the way that she did. That was the relevance to which the cross-examiner’s questions were directed. The complainant’s reaction to the questions was no less relevant in the context of the trial.

54. Nor am I satisfied that the appellant suffered from any unfair prejudice in the circumstances. The probative value of the complainant’s communications with Ms Smiles was clearly and tactically embraced by the appellant in seeking to establish that the communications were either consistent with her having consented to sexual activity with him or with the absence of complaint or both. Neither at the trial nor in this Court can the appellant be permitted both to approbate the line of questioning appropriately and sensitively pursued by his counsel for legitimate forensic purposes and at the same time to reprobate the complainant’s reaction that the pointed and difficult questions produced. The application to exclude the evidence with which her Honour was asked to deal was one that in reality sought to discard the sour part of the fruit while keeping the sweet. Allowing the appellant’s application would have distorted the evidence taken as a whole. Her Honour’s reasons acknowledge as much. Her Honour did not err in rejecting the application.

55. This ground of appeal is without merit.

Ground 3

56. At the appellant’s first trial, his Honour Judge Whitford SC acceded, over objection by the Crown, to an application by the appellant to tender evidence of text messages between the complainant and Stephen Page on 30 September 2018, sent approximately 10 hours earlier than the sexual activity with the appellant. The appellant sought to rely upon this material in order to show that on the same day as the assault of which she complained, the complainant was expressing a desire to engage in sexual activity with him.

57. The terms of the texts are as follows:

“Complainant:   Are you going to talk to me. Otherwise I won’t

At least answer me and not be a dick.

Stephen Page:   You honestly lost me at jarred Hayne is your side boy

Complainant:   He isn’t. He contacted me last night and asked for my number and rang me.. I told him no.

You said maybe. So I’m asking if you’re not. I feel like a fucking idiot.

Are you coming over

K

If we aren’t going to keep talking I’m going to say yes to jarryd hayne coming here to hang out when he’s done at his mates. Otherwise I won’t let him.

Stephen Page:    Omg get me his signature babe xx

Complainant:   You’re an asshole

Don’t talk to me again

So you’re not coming? You are being really horrible. I’ve never had to deal with someone who says something then just goes cold.

Stephen Page:    I never said I was coming ova

I’m out for dinner with ash

Complainant:   You said maybe. So I’m asking if you’re not. I feel like a fucking idiot.

Are you coming over

K

If we aren’t going to keep talking I’m going to say yes to jarryd

Oh

U don’t have to come here

You’ll be ages

Don’t worry about it. See you another time. You’re not keen and I don’t know what you want from me.

What have I done now?

Just stop talking to me all together. You’re being a jerk and I can’t handle it. I’m really upset and this is bringing me down so badly.”

58. Her Honour Judge Syme came to a different view at the appellant’s second trial and rejected the tender of this material. The appellant contends under this ground of appeal that her Honour was in error in departing from the approach adopted at the first trial, with the result that his conviction should be quashed and a new trial ordered. Implicit in the appellant’s complaint is that he would wish to rely upon this evidence at any retrial that this Court may order.

59. The appellant accepts that the terms of these text messages do not on their face include communications of an explicit sexual nature. However, it had been his intention at the second trial to require the Crown to recall the complainant in order to put to her that the text messages were suggestive of her desire to engage in sexual activity with him. Accordingly, the appellant applied at the second trial for a ruling that the evidence was admissible because it fell within the exceptions provided by s 293(4)(a) and (b) of the Criminal Procedure Act.

60. Judge Whitford’s decision at the first trial permitted the appellant to rely on this material in a limited fashion. So much is clear from the final paragraph of his decision on the application:

“For the reasons that I have attempted to provide as briefly as possible in circumstances where we have a jury waiting to return to Court, I conclude that at least at the present time, the nature and scope of the material that is properly admitted is the foreshadowed questioning of the complainant about the content of the material which has been admitted as exhibits VD2, 3 and 4. It may remain for later determination whether – and if so, to what extent – the documents themselves become admissible.” [Emphasis added]

61. It would appear, following this decision, that the Crown foreshadowed a proposed challenge to his Honour’s ruling. This would have had the potential to delay the first trial. Accordingly, the evidence of the messages between the complainant and Mr Page was by agreement between counsel utilised by the appellant merely to support cross-examination of the complainant to suggest that she was telling Mr Page that the appellant might come to her place that evening. It was not to be suggested to the complainant in cross-examination that her messages with Mr Page were referring to an intention or desire to engage in sexual activity with the appellant.

62. As will be apparent, the issue was revisited before her Honour Judge Syme at the second trial. It is convenient to refer to some of the terms of her Honour’s decision:

“I am asked by the Crown to reverse the previous judge’s ruling is required [sic] even though his previous ruling was not fully taken advantage of, by agreement. I will deal with the first issue which is s 130A of the Criminal Procedure Act. It states:

‘(1) A pre-trial order made by a judge in proceedings on indictment is binding on the trial judge in those proceedings unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding.’

This also relates to re-hearings in the circumstances of this case. Therefore, unless that ruling is reversed by me, the defence can tender that evidence presumably as a whole. I will consider the application initially in the absence of a consideration that the complainant might need to be recalled although I accept the issues are intertwined.

There are two considerations: one, whether it is appropriate in the context of a retrial to effectively allow the accused to change the basis of an agreement made in a previous trial where different counsel were involved and possibly a different forensic decision might have been made. As a matter of policy there is no reason why a trial judge ought not allow this if it is in the interests of justice to do so. There is no criticism of the previous trial counsel who made this concession possibly to avoid the trial being delayed while an appeal was pursued.

This is a new trial and the accused is entitled in effect to seek to have the benefit of the previous judge’s ruling. On the other hand, the interests of justice must also consider the interests of justice for the Crown who did not proceed with the appeal and would then face the potential of recalling the complainant, who I know is not willing to reattend. I am alive to all of these considerations.”

63. In the events that occurred, her Honour should have considered the application pursuant to s 130A(3) of the Criminal Procedure Act. Having regard to the similar intent of the subsections, nothing turns on that in this appeal.

64. After dealing with the question of whether the evidence fell within one of the exceptions contained in s 293(4) of the Criminal Procedure Act, her Honour expressed the following conclusions:

“Finally, when considering the interests of justice, s 130A, and the accused’s desire to rely on a ruling with which I clearly disagree, I observe that his counsel in the previous trial, Mr Boulten SC, came to a favourable agreement with the Crown as to putting this text to the complainant and having her comment on it. There is little further required. There is no need to put the text itself before the jury. It adds nothing to the issue in dispute.

I propose therefore to accede to the implied Crown application to reject the tender of the document into evidence and thereby reverse that part of Judge Whitford’s ruling. The texts … are inadmissible. In the circumstances of this I do not need to address the issue of recalling the complainant on this particular issue.”

65. It was not and is not in issue that Judge Whitford’s decision amounted to a pre-trial order: it was made at the appellant’s first trial after the indictment was presented but before the jury was empanelled: s 130A(4). Pre-trial orders include rulings on the admissibility of evidence: s 130A(5).

66. Before considering the admissibility of the text messages under s 293, her Honour was required separately to determine whether it was not in the interests of justice for Judge Whitford’s decision to be binding. The appellant contended in this Court that her Honour’s decision discloses the following errors.

67. First, her Honour failed properly to consider and apply s 130A before proceeding to consider the merits of the application. Her Honour referred to the s 130A test but did not sufficiently consider or expose her reasoning with respect to the interests of justice. She did not refer to the Crown’s onus to demonstrate on the balance of probabilities that it was not in the interests of justice for the original decision to be binding: s 142 of the Evidence Act. Her Honour did not refer to the general principles applicable to an application to revisit a prior ruling, including the need to demonstrate material change in circumstances, as summarised by Johnson J in R v Dirani (No 8) [2018] NSWSC 1000 at [11]-[14]. Her Honour failed to determine the ultimate question of whether the Crown had in fact shown that it was not in the interests of justice for Judge Whitford’s decision to be binding.

68. Secondly, the matters relied on by her Honour were said to be insufficient to demonstrate that it was not in the interests of justice for the decision to be binding. For example, her Honour took into account the decision made by the appellant’s counsel at the first trial to adduce the evidence in a more limited manner than the decision allowed after the Crown merely signalled an intention to consider a s 5F appeal, a jurisdictionally questionable prospect given that it would have required the Crown to establish that the admission of evidence eliminated or substantially weakened its case: s 5F(3A) of the Criminal Appeal Act. In any event, the appellant submitted that the course adopted by his counsel at the trial was mutually beneficial: he did not risk his trial being delayed further and the Crown did not risk the evidence being admitted in its entirety. It was not a tactic designed to deprive the Crown of an avenue of appeal and it did not amount to a material change in circumstances.

69. The appellant submitted that Judge Whitford’s decision was not plainly wrong. His conclusion that the messages provided substantial support for the suggestion that the complainant invited the appellant to her house for sexual activity was said to have been open to him. None of the matters upon which her Honour appeared to rely in acceding to the Crown’s application was, either alone or in combination, sufficient to support a conclusion that it was not in the interests of justice for Judge Whitford’s decision to be binding.

Consideration – Ground 3

70. Section 130A(3) of the Criminal Procedure Act is in these terms:

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

71. The onus to establish on the balance of probabilities that it would not be in the interests of justice for the order to be binding rests with the party contending that it should not be. In this case, that onus rested with the Crown.

72. On one view of what occurred at the first trial, the appellant’s complaint under this ground proceeds on the doubtful assumption that Judge Whitford found the appellant could tender the documents in question. As the extract from his Honour’s decision at [60] reveals, his Honour specifically left for later determination the question of whether the texts could be tendered, as opposed to making an order permitting the appellant to cross-examine the complainant about them. However, Judge Syme’s decision was specifically directed to the admissibility of the Stephen Page texts as opposed to any questions in relation to it which Judge Whitford reserved. The Crown submitted in this Court that on that basis such issues remained for determination by Judge Syme in any event and that, properly understood, no s 130A issue arose for her to consider.

73. Be that as it may, some doubt also appears to have affected the approach taken by counsel thereafter. This is reflected in her Honour’s judgment, to the extent that she observes there to have been some agreement between counsel that Mr Boulten for the appellant would limit or constrain the way in which he cross-examined on the texts by simply “putting this text to the complainant and having her comment on it”. The literal effect of the orders of Judge Whitford was that this was the only course open to the appellant’s counsel: the so-called agreement, apparently formed in order to avoid an application by the Crown to challenge his Honour’s decision, was therefore unnecessary or of no practical effect. The separate and different question of whether the appellant’s counsel would or should later be permitted to cross-examine the complainant in a way that raised the limitations on cross-examination upon prior sexual experience under s 293 of the Criminal Procedure Act unfortunately appears further to have confused the debate.

74. In this somewhat curious procedural context, her Honour’s decision was that it would not be in the interests of justice for the order to be binding so that the appellant was no longer permitted to tender the texts at the second trial. As her Honour said, “There is no need to put the text itself before the jury. It adds nothing to the issue in dispute.”

75. Judge Whitford’s decision on this issue at the first trial was delivered on 23 November 2020. In that judgment, in the context of the s 293(4)(a) debate, his Honour expressed an opinion about the text messages that were the subject of his decision, which included the Stephen Page text. He said this:

“It seems to me that, upon a proper analysis of their content, read altogether, the three sets of messages provide substantial support for the suggestion that the complainant invited the accused to her house for sexual activity, and that a jury might, by reference to this material, so reason. It is far from determinative one way or the other about whether or not there was consent to any activity that followed once he arrived at the house. But it seems to me the material has the capacity substantially to affect a jury’s conclusions in respect of the matters that are principally in issue in this proceeding, and ultimately to conclude that such activity which followed was consensual, and that the accused was likely to have believed the sexual activity was consensual.”

76. However, only two days later, the complainant was cross-examined about the texts with Mr Page, in terms entirely limited to the following questions:

“BOULTEN: Did you discuss with anybody the idea of inviting Jarryd Hayne over to your place?

A.   I think I told somebody that he was coming over. Yep.

Q.   One person? More than one person?

A.   Mum and another girl, Monique.

Q.   Who?

A.   Another girl, Monique. I’m pretty sure I told her and that was it.

Q.   What about Stephen Page? Did you tell him?

A.   Did I tell him? I don’t think so. I can’t remember.

Q.    I suggest you told him that you were thinking about inviting Jarryd Hayne over.

A.   Well, I didn’t invite Jarryd Hayne over, but I could have said it.

Q.   And Monique, you discussed it with.

A.   Monique – I’m pretty sure I said I’d turned down Jarryd for Stephen.

…

Q.   Monique was not the only person that you told that day that you were trying to meet up with Jarryd Hayne, was she?

A.   I can’t remember.

Q.   I suggest that you said something to a fellow called Stephen Page about you perhaps inviting Jarryd Hayne over to your place. What do you say about that?

A.   Possibly could have.

Q.   Sorry?

A.   I possibly could have, I can’t recall.

Q.   I’m not going to ask you to read any of this out…

A.   Yep.

Q.   …but I’m going to put a document in your hand, and I want you to read it please.

A.   To myself?

Q.   To yourself. Just quietly to yourself.

A.   Yep.

Q.   Having read that, does that refresh your memory about what you said to Stephen page?

A.   Yes, I don’t …

Q.   No, please, we’re just going to be very careful about this. Do you agree that you suggested to Stephen Page that Jarryd Hayne might well come to your place?

A.   Yes.

BOULTEN: Could that document be marked for identification, please.”

77. It is reasonably apparent, if not entirely obvious, that Mr Boulten’s careful cross-examination of the complainant in this way understandably made no reference to any matters that might fall foul of s 293(3). That approach was coincidentally in compliance with the agreement made with the Crown that it would be limited to the literal terms of the text messages with Mr Page. At the second trial, whatever agreement may have been reached at the first trial, counsel for the appellant clearly indicated to the Crown that it was proposed to tender the texts in their entirety and to seek to have the complainant recalled for (presumably) more extensive or different cross-examination. The application that followed, and her Honour’s decision, clearly proceeded on the basis that Judge Whitford had in fact permitted the texts to be tendered at the first trial.

77. In these circumstances, I consider that this ground of appeal can be disposed of in the following way. Her Honour’s decision deals specifically with some of the s 293 issues. Among other things, her Honour said this:

“Defence argued that s 293(4)(a) is satisfied in that the exchange occurred at a time proximate to ‘the time of the commission of the alleged prescribed sexual offence’ and ‘form[ed] part of a connected set of circumstances.’ I disagree. While the time frame proximate must be considered in each individual circumstance, in the context of this case ten hours where the conversation was with another, even if – and I do not accept that it was – but even if this was a conversation about sex, it is not proximate in the context of this case.

The reasoning that if the complainant was not going to have sex with one person, then she would consent to have sex with another and was sexually available therefore is not grounded in any evidence.”

79. In my view, her Honour’s conclusion that the conversation in the Stephen Page texts was not about sex was correct and that should have been the end of the matter: s 293(3) was not transgressed. Judge Whitford’s decision should have remained binding. My reasons for forming that view are as follows.

80. Section 293 is relevantly in these terms:

293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, …

81. On no view of the terms of the text messages with Mr Page could the text message “evidence” be said to disclose or imply that the complainant has or may have had sexual experience or a lack of sexual experience, or that she has or may have taken part or not taken part in any sexual activity. The text conversation was about whether Mr Page was going to come to her house or whether, in the event that he did not, that the complainant might “say yes to jarryd hayne coming here to hang out when he’s done at his mates”. The preconditions to the engagement of s 293(3) are all absent. Accordingly, any need to consider whether to reject the evidence upon the basis that it fails to qualify as one or other of the exceptions in subs (4) simply does not arise. The text message material with Mr Page was never inadmissible by reason of the terms of s 293(3) and nothing in that provision prevented the appellant from tendering it. If it is accepted that Judge Whitford decided that the appellant could tender the texts, his decision was not obviously wrong. Accordingly, the appellant did not at either trial need to demonstrate that the evidence fell within a s 293(4) exception.

82. Additionally, s 293(3) deals in any event with sexual experience, or by definition with what has or may have occurred in the past. In no sense do the terms of the text messages with Mr Page “disclose or imply” that the complainant has or may have had sexual experience or lack of it or that she has or may have taken part in any sexual activity. The appellant’s possible forensic purpose in tendering the texts related to the question of whether or not the complainant may have intended to engage in sexual activity with either him or Mr Page in the future. That purpose was related to the issue of consent to later sexual activity with the appellant, not to the clearly inadmissible issues of the complainant’s sexual reputation or sexual experience or lack of it. See in this respect, GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150 at [62]-[66].

83. Finally, although without any significance, nothing in the text messages has anything at all to do with, or to say about, the complainant’s sexual activity or experience, or lack of it, at any time, let alone “at or about the time of the commission of the alleged prescribed sexual offence”. To contend otherwise is to ignore completely the terms of the text messages. It was similarly unnecessary for her Honour to consider whether the events described in the texts could form part of a connected set of circumstances in which the alleged sexual offence was committed, or whether it related to an existing or recent relationship between the appellant and the complainant. Her Honour erroneously considered, with the encouragement of counsel, that the text message “evidence” tendered by the appellant was required to fall within one of the s 293(4) exceptions, when there was no such requirement: the text messages did not offend s 293(3).

84. Having regard to the misplaced significance given to s 293(3) in the debate about the correctness of Judge Whitford’s decision to permit the tender of the text messages with Mr Page, and to the similarly misplaced significance given to it when Judge Syme dealt with the Crown’s application to reject the tender of that material, it seems to me that the Crown failed to demonstrate to her Honour by reference to relevant considerations that it was not in the interests of justice for Judge Whitford’s decision to stand. There had been no material change in circumstances and the Crown failed to demonstrate that there had been. I consider that her Honour failed to determine the ultimate question of whether the Crown had in fact shown that it was not in the interests of justice for Judge Whitford’s decision to be binding.

85. Whether pursuant to the agreement reached with the Crown at the first trial, or simply because Mr Boulten had formed a particular forensic opinion about the extent to which he could permissibly cross-examine on the evidence, it was understandably not put to the complainant that the text messages were suggestive of her desire to engage in sexual activity with the appellant. As earlier noted, it would seem that that later became the appellant’s intention at the second trial, and would have required the complainant to be recalled if that were to occur. However, the issue of whether or not the complainant would or should be recalled for that purpose on the appellant’s application, and the question of whether Judge Whitford’s decision allowing the tender of the text messages should have remained binding, although related as her Honour observed, are separate issues. The interests of justice to be considered on the question of whether or not to permit the appellant to recall the complainant are not the same as the interests of justice touching the question of whether Judge Whitford’s decision should be reversed: the terms of the Stephen Page texts are not inadmissible by reason of s 293(3) and the appellant’s entitlement to tender them should have been considered independently of the likelihood that the complainant would be required to reattend. It would still be open to the appellant at a retrial to apply to recall the complainant to cross-examine her about whether the text messages were suggestive of her desire at the time to engage in sexual activity with him. The appellant’s successful tender of the texts does not foreclose the outcome of any such application.

86. In this last respect the Crown submitted in this Court that even if Judge Syme’s decision were incorrect for any reason, and Judge Whitford’s order remained binding, this was a matter of little practical significance for the appellant unless he also succeeded in his application under s 306J(1) of the Criminal Procedure Act to recall the complainant. The Crown contended that neither s 306J(1)(a) nor (b) applied because there was nothing to clarify and the Stephen Page texts had been available at the first trial. That left only the interests of justice consideration under s 306J(1)(c): see WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [38]–[42]. The Crown maintained that, given the limited probative value of the texts in any event in the context of the issues in the trial overall, there is little prospect that the complainant would be compelled to give further evidence. I accept that there is force in that submission. However, it is not something that was sufficiently explored in this Court and should in any event in my view be an issue, if pressed, properly to be left to the judge hearing a retrial.

87. I would grant leave to appeal on Ground 3 and allow this ground of appeal.

Application of the proviso to Grounds 2 and 3

88. Having regard to the Crown concession with respect to the application of the proviso to Ground 1, it is unnecessary to consider the competing claims made concerning its application to these grounds.

Ground 4

89. As earlier indicated, it is necessary to recall the events of 30 September 2018 in more detail.

90. The appellant’s written submissions include a summary which is not controversial. Both the appellant’s evidence and the complainant’s evidence was largely consistent with respect to the events that led up to the appellant visiting the complainant at her home. The complainant was aware that the appellant was a famous NRL footballer and she followed him on Instagram. Prior to 17 September 2018, they had not had any contact of significance. There was a question at trial about whether they had previously exchanged messages on Instagram in relation to the complainant’s participation in a “Face of Origin” modelling competition but nothing turned on this. On 17 September 2018, the complainant messaged the appellant on Instagram saying ‘You are absolutely gorgeous x’ and on 18 September 2018, the appellant and the complainant commenced a conversation over Instagram that included a sexually explicit advance by the complainant. At the end of this exchange the complainant provided the appellant with her phone number and Snapchat details.

91. Between 22 September and 30 September 2018, the complainant and the appellant regularly communicated with each other, mostly using Snapchat, including about “flirty type sexual type stuff”.

92. The complainant lived with her mother in a house in Fletcher, a suburb of Newcastle. On 29 September 2018, the appellant travelled to Newcastle for a friend’s buck’s party weekend. Over the weekend the complainant and the appellant messaged each other with the appellant inviting the complainant to attend a party on 29 September 2018, which she declined.

93. The NRL Grand Final was scheduled to commence at 7.20pm on 30 September 2018. That evening the appellant was at his friend’s house and was “pretty intoxicated”. He intended to return to Sydney that evening and a taxi was booked to take him. He made arrangements with the complainant to visit her at her home on his way back to Sydney and the taxi dropped him off at the complainant’s home at 9.07pm.

94. The complainant gave evidence that she answered the door to the appellant, which was confirmed by her mother. The appellant said that the complainant’s mother answered the door. It is not clear that anything turns on this controversy.

95. The complainant and the appellant ended up on the complainant’s bed. They engaged in small talk but they both felt awkward. The appellant suggested doing “sing-a-longs”. He took the laptop and looked up Ed Sheeran and started singing along to the songs that were playing.

96. The complainant heard a car horn outside and looked out the window. She asked the appellant, “Is there a car waiting, is there a taxi outside?”. The appellant went outside and the complainant’s mother told her that the taxi driver had said “Is Jarryd here? It’s been 20 minutes.” The complainant gave evidence that on hearing this her “heart dropped” and she felt that “he had only come there for one thing” and she therefore told her mother, “There’s no way I’m about to have sex with him”.

97. The complainant gave evidence that she observed the appellant return to the house and walk straight past her bedroom to the lounge room to watch the NRL Grand Final. He returned to her bedroom about a minute later. The appellant said that he went back to the complainant’s room and then went to watch the Grand Final in the lounge room and then returned to the bedroom. Again, it is not clear that anything turns on this controversy.

98. The evidence of the complainant and the appellant diverged most significantly after the appellant went back into the complainant’s bedroom. The complainant said that she felt angry, hurt and sad and moved away from the appellant. She said something like “Why would you get the taxi to wait outside for 20 minutes? What did you expect was gunna happen” and “Did you think I was just going to have sex with you?” She said that the appellant walked around the bed to where the complainant was sitting and leant on the bed, breaking one of the slats. He tried to kiss the complainant but she said no. The appellant pushed her face into the pillow. The appellant grabbed the complainant’s pants and pulled them off in one go. The complainant said “No” and “No Jarryd” about three or four times. She was laying back on the pillows facing the window and the appellant was kneeling down and he put his mouth on the complainant’s vagina and inserted one or two fingers into her vagina. She said she did not feel pain but it was not pleasurable. After about 30 seconds it stopped because she started to bleed. She said she did not consent to any of the sexual activity that happened.

99. By contrast, the appellant gave evidence that when he returned to the bedroom the complainant was “all right”. He said that he kissed her and she kissed him back. The appellant then put his hand near the complainant’s vagina on the outside of her pants and she continued to kiss him. The appellant grabbed the complainant’s hand and put it near his penis and she rubbed his penis. The appellant went back to rubbing the complainant’s vagina, then tried to put his hands down her pants but he could not get his hand down. The complainant assisted the appellant to remove her pants, then lay next to him on the bed again. The appellant might have touched the outside of the complainant’s vagina again. The complainant unclipped her bodysuit near her vagina. The appellant gave evidence that he observed at the time that the complainant “was a bit dry” so he decided “to go down on her” because he thought “she’d like it”. He licked her vagina for another twenty or thirty seconds, maybe longer, and the complainant was breathing heavily. The complainant did not say “No” and “Stop”. However, when the appellant felt “the sense of a different liquid” on his lip he jumped up and looked at his hand and saw blood on it.

100. The evidence of the complainant and the appellant about what happened next, after she started bleeding, was largely consistent. The appellant went to the bathroom to clean himself up. The complainant also went into the bathroom and got in the shower because she had blood all down her legs and it was then that she first experienced pain. The complainant got out of the shower and walked into the bedroom where the appellant was standing and said to him, “I’m really hurting”. The appellant left shortly afterwards and let himself out of the house.

The appellant’s submissions – Ground 4

101. The appellant submitted that the evidence of what happened in the hours and days after the sexual intercourse supported both versions of what happened. The position of blood on the complainant’s bed and bedding was consistent with her having retreated from the appellant before the injury and then having moved down the bed after the injury, as well as with her having moved away from him up the bed after the bleeding started. The complainant acted consistently with someone who had been sexually assaulted, speaking with her best friend Hayley Hartley and her mother about it, going to the doctor, speaking with her sister and then speaking with police. The appellant acted consistently with someone who had engaged in consensual sexual intercourse with a casual acquaintance, telling her to go to the doctor, calling her a few times, informing her that his phone had been stolen, dismissing her complaints to his friends and denying that the events were non-consensual when confronted about it directly on Snapchat.

102. The appellant submitted that it was necessary for the Crown to prove beyond reasonable doubt that the complainant did not consent and that the appellant knew that she was not consenting (in any of the three ways provided by s 61HA(3) of the Crimes Act). As in Liberato v R (1985) 159 CLR 507; [1985] HCA 66, the chief evidence of lack of consent and evidence of a guilty state of mind came from the complainant and the appellant. The complainant denied that she had consented to any act of intercourse, and she described events from which the jury could infer that the appellant must have had a guilty state of mind. The appellant denied that he had any of the guilty states of mind prescribed by s 61HA(3) and his description of the events was such that the jury could infer that the complainant was consenting to the two acts of sexual intercourse.

103. The appellant contended that, whether or not it was unreasonable for the jury not to accept the appellant’s version, there was no basis on which the jury could be satisfied that the appellant’s version was not a reasonable possibility. At the least, what he said in his sworn evidence played to the jury might be true. There is nothing about the version that was improbable or inherently unlikely. People engage in consensual sexual intercourse despite being angry or upset, for any number of reasons. In the appellant’s trial, the evidence of the complainant’s initial sexual interest in the appellant, in the absence of any romantic relationship or even friendship, is suggestive of the possibility that she did engage in consensual sexual intercourse with him despite the way she says he made her feel. That the appellant accidentally injured the complainant causing her pain and to bleed from her vagina, and then left very shortly afterwards, is a possible explanation for why the complainant may have quickly re-evaluated the circumstances of sexual intercourse.

104. If the jury had properly applied the Liberato direction, the appellant should have been found not guilty. His convictions should be quashed and the appellant should be acquitted.

Crown submissions – Ground 4

105. The Crown submitted that there was no dispute that the acts of sexual intercourse occurred. The complainant was significantly injured despite the very limited duration of the intercourse, supporting her description of it as rough and forceful. She told the appellant “no”, which was confirmed by her immediate complaint to both the appellant and shortly thereafter to her friend Hayley Hartley. It is accepted that the complaint to the police was initiated by others and made reluctantly by the complainant. It was entirely open and reasonable for the jury to accept her evidence to the requisite standard and to reject the appellant’s account as a reasonable possibility. That was particularly so having regard to the fact that the appellant had sexual intercourse with the complainant notwithstanding that she had become aware, and was accordingly upset, that he had arranged for his taxi to wait outside with the corresponding implication that he did not intend to stay at the complainant’s house for very long.

Consideration – Ground 4

106. The appellant’s central proposition is that there was no basis upon which the jury could have been satisfied that his version was not a reasonable possibility. If it was, the jury must by definition have entertained a reasonable doubt. The appellant’s argument effectively proceeds from the standpoint that in considering the question of whether or not the Crown had proved its case beyond reasonable doubt, necessarily based upon an acceptance of the complainant’s evidence, he was entitled to expect that the jury would take his response into account. If in doing so it appeared that the competing versions of the complainant and the appellant might each possibly be true, the jury could not have been satisfied of his guilt beyond reasonable doubt.

107. Whatever the jury may have thought the complainant’s attitude to consensual sexual activity with the appellant might have been before the taxi driver turned up at the door, the jury was in my view perfectly entitled on the evidence to be satisfied beyond reasonable doubt that she did not consent to sexual activity with him thereafter. It had been the thrust of the appellant’s response to the Crown case that the complainant had been enthusiastic for him to come to her house and that the messages and communication that had passed between them in the relatively short period leading up to 30 September 2018 bore witness to that suggestion. The appellant contended that this should have raised a doubt about the complainant’s evidence that she did not consent to sexual activity with him. However, the undisputed fact is that before the sexual activity occurred, the appellant’s waiting taxi driver had come to the door to enquire, in effect, how long he would be. The complainant became aware of this. The credibility of her evidence that she did not thereafter propose to engage in sexual activity with him does not in my opinion suffer by reason of the appellant’s evidence that she consented to what occurred. Indeed, evidence to the effect that she did not wish to engage in sexual activity with the appellant once becoming aware that he had arranged to stay no longer than 20 minutes, whatever her previous attitude to sexual activity with him might have been, would be difficult to reject. The jury would in my view have been perfectly entitled to believe the complainant’s account beyond reasonable doubt, despite the appellant’s evidence to the contrary. There is in my view a readily available basis, evident in the complainant’s indignant reaction to having been treated in this way, upon which the jury could have readily rejected or discounted the appellant’s version as far from a reasonable possibility. In forming that view, I note that there is no dispute that the taxi driver came to the door of the house before the events complained of occurred. That circumstance is significant: it is not as if the complainant relied upon an arguably confected event to justify or enhance her evidence that she did not consent to sexual intercourse or activity thereafter.

108. The jury verdict in respect of neither count was unreasonable. Ground 4 should be dismissed.

Conclusion

109. I would propose the following orders:

1. Grant leave to the appellant to appeal on grounds 1 and 3.

2. Allow the appeal on those grounds.

3. Quash the appellant’s convictions and order a new trial.

4. Grant leave to appeal on ground 2 but dismiss that ground.

5. Dismiss ground 4.

6. List the proceedings for directions in the District Court at 9.30am on 18 February 2022.

110. Wilson J: I agree with the orders proposed by Harrison J for the reasons given by his Honour. I wish to add a comment with respect to one matter only, being the question of the application of the proviso to ground 1.

111. As Harrison J pointed out, citing Krakouer v The Queen, there is no rule of law that prevents the application of the proviso in circumstances where the error under consideration concerns the elements of the offence. See also Davies v R [2011] NSWCCA 19. The error in this instance related to the elements of the offence of sexual intercourse without consent where recklessness was the relevant basis of criminal liability.

112. In the way in which each party conducted its case at trial, recklessness was not of real significance. The Crown’s case was that the appellant disregarded the complainant’s clear refusal of consent to sexual intercourse; the appellant’s case was that the complainant gave clear consent by her conduct. Recklessness was not of obvious relevance. However, the Crown both opened to the jury on recklessness, and relied upon it in closing address. In those circumstances, and bearing in mind the inscrutability of the basis of the jury’s verdicts, it is not possible, as Harrison J concluded, to say that there was no miscarriage of justice. For that reason the proviso has no application in this instance.

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Amendments

12 May 2023 - Publication restriction removed.

Decision last updated: 12 May 2023