Hayne v The King

[2024] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Hayne v R [2024] NSWCCA 97

Hearing dates:

3 April 2024

Date of orders:

12 June 2024

Decision date:

12 June 2024

Before:

Meagher JA at [1];
Rothman J at [206];
Sweeney J at [247]

Decision:

1. Grant leave to appeal.

2. Dismiss Ground 1 of the appeal and uphold Grounds 2 and 3 of the appeal.

3. Quash the appellant’s two convictions.

4. Order a new trial.

Catchwords:

CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — whether jury’s guilty verdicts unreasonable — where complainant alleged to have been “emotionally changeable” — where complainant’s version said not to account for period in which appellant at complainant’s house — where complainant’s accounts to others said to be inconsistent with charged offences — where complainant said to have curated evidence

CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — application made at trial to re-call complainant pursuant to Criminal Procedure Act 1986 (NSW), s 306J to give further evidence about her interactions with others after alleged assaults — whether trial judge erred in refusing to grant leave pursuant to s 306D — whether miscarriage of justice occasioned by trial judge giving a direction on “lies”

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 578A

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 8(1)

Criminal Procedure Act 1986 (NSW), ss 306B, 306C, 306D, 306I, 306J

Evidence Act 1995 (NSW), s 97

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Browne v Dunn (1893) 6 R 67

Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

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

Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206

Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12

Hayne vR [2022] NSWCCA 11

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Lang v The Queen [2023] HCA 29

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

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

McPherson v Copeland (1961) SC (J) 74

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

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

R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

R v Birks (1990) 19 NSWLR 677

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

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

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 March 2005

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2006

Category:

Principal judgment

Parties:

Jarryd Hayne (Appellant)

Rex (Respondent)

Representation:

Counsel:
T Game SC, A Cook SC and C O’Neill (Appellant)
G Wright SC and A Bonnor (Respondent)

Solicitors:
MacDougall & Hydes Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/355835

Publication restriction:

Pursuant to Crimes Act 1900 (NSW), s 578A, publication of the complainant’s name or any matter likely to lead to her identification is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

04 April 2023

Before:

Turnbull SC DCJ

File Number(s):

2018/355835

JUDGMENT

1. MEAGHER JA: On 4 April 2023, the applicant, Mr Jarryd Hayne, was found guilty by a jury and convicted of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The particulars of count 1 alleged cunnilingus performed on the complainant (the relevant definitional provision at the time of the alleged offending being s 61H(1)(c)) and the particulars of count 2 alleged digital vaginal penetration, also performed on the complainant (s 61H(1)(a)(i)). That conduct was alleged to have occurred at the complainant’s house at around 9:30pm on 30 September 2018.

2. The jury trial which resulted in these convictions proceeded in the District Court between 13 March and 4 April 2023 and was the third trial faced by the applicant in relation to the charged conduct. On 12 May 2023, the applicant was sentenced to imprisonment for a term of 4 years and 9 months with a non-parole period of 3 years, to date from 7 May 2022. Taking into account the time the applicant spent in custody prior to his conviction, he is first eligible for parole on 6 May 2025. There is no appeal from that sentence.

3. The applicant seeks leave to appeal against each of these convictions on three grounds. They are that the jury’s verdicts are unreasonable or unsupported by the evidence (ground 1), that the trial judge erred in determining that it was not “necessary in the interests of justice” for the complainant to give further evidence about her separate interactions with two persons, Ms Monique Smiles and Mr Stephen Page (ground 2), and that a miscarriage of justice was occasioned by the trial judge’s ruling refusing to grant leave to the complainant to give further evidence about her interactions with Ms Smiles (ground 3).

4. As each of these grounds raises a question of mixed law and fact, leave to appeal is required (Criminal Appeal Act 1912 (NSW), s 5(1)(b)). The Crown contends that the grounds of appeal lack merit. In my view, each of the grounds raises a sufficiently arguable case to justify the appeal on that ground being considered on its merits. Accordingly, I would grant leave to appeal on each of grounds 1, 2 and 3. For the reasons which follow, I would dismiss the appeal on each of those grounds. Mr Hayne is hereafter referred to as the appellant.

Non-publication orders

5. It is convenient to note at the outset that certain prohibitions apply in relation to the publication of certain matters relating to the proceedings.

6. There is a statutory prohibition on the publication of any material that would identify the complainant, being a complainant in “prescribed sexual offence proceedings” (Crimes Act 1900 (NSW), s 578A(2)). By necessity, in this case that prohibition extends to identifying the complainant’s mother, sister and brother-in-law. It does not extend to the identities of other individuals whose communications with the complainant are in evidence (and in any event whose identities have already been published on Caselaw).

7. Specific non-publication orders have also been made in relation to the proceedings. On 12 May 2023, the trial judge made non-publication orders pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8. Those orders remain extant and prohibit inter alia the publication of photographs of the appellant’s wife or her children taken on or after 12 May 2023.

Procedural history

8. The appellant was first tried in the District Court in 2020. The indictment presented contained four counts: two of aggravated sexual assault, and, in the alternative, two of sexual assault. The jury was unable to reach a unanimous or majority verdict and was discharged on 7 December 2020. In that trial, the complainant gave oral evidence on 24 and 25 November 2020. An audio-visual recording was made of that evidence. The appellant gave evidence on 27 and 30 November and 1 December 2020, and an audio-only recording was made of his evidence.

9. The second trial was held in March 2021 in relation to the same four counts as were charged by the first indictment. On 22 March 2021, the jury returned verdicts of not guilty in respect of the two counts of aggravated sexual assault, and guilty in respect of the alternative counts of sexual assault. The audio-visual recording of the complainant’s oral evidence in the first trial was admitted as the complainant’s evidence in the second trial (Criminal Procedure Act 1986 (NSW), s 306I); and the appellant’s evidence was given by the tender in the Crown case of the audio-only recording of his oral evidence in the first trial.

10. The appellant successfully appealed from those convictions. On 14 February 2022, the Court of Criminal Appeal quashed each of those convictions on the ground that the trial judge had given erroneous directions to the jury concerning the legal test for proving that the appellant knew that the complainant was not consenting; and ordered that there be a new trial in the District Court (Hayne vR [2022] NSWCCA 11). The Court also held that the trial judge had erred in overturning a ruling in the first trial which allowed the appellant to tender “screen shots” of text messages exchanged between the complainant and Mr Page on 30 September 2018.

The third trial

11. The third trial commenced on 13 March 2023. The indictment presented in this trial only charged two counts:

JARRYD LEE HAYNE

1.    on 30 September 2018, at Fletcher in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent, and knowing that she was not consenting

S 61I Crimes Act 1900 Law part code 271

[and]

JARRYD LEE HAYNE

2.    on 30 September 2018, at Fletcher in the State of New South Wales, did have sexual intercourse with [the complainant], without her consent, and knowing that she was not consenting

S 61I Crimes Act 1900 Law part code 271

12. At the time of the charged offending, the terms of s 61I of the Crimes Act 1900 (NSW) were 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.

13. For the purposes of this provision, “sexual intercourse” included by the definition then provided in s 61H:

61H Definition of “sexual intercourse” and other terms

(1) For the purposes of this Division, sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person…

except where the penetration is carried out for proper medical purposes, or

…

(c) cunnilingus, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

14. In the third trial, as in the second, the complainant’s evidence was given by way of the audio-visual recording of her oral evidence at the first trial. With leave of the Court given pursuant to Criminal Procedure Act 1986 (NSW), s 306D, the complainant gave further oral evidence concerning a civil claim for damages against the appellant which she had commenced on 4 August 2021 following his convictions in the second trial. That leave was granted following a pre-trial application made by the appellant under s 306J(1) for a ruling that the complainant was “compellable” to give further evidence by way of cross-examination in relation to that matter, as well as in relation to her interactions with Ms Smiles and Mr Page. The trial judge’s rejection of that application in respect of the latter two matters, which his Honour treated as properly made under s 306D(2) rather than s 306J(1), is the subject of grounds 2 and 3.

15. It is convenient to address those grounds first. The following factual overview provides a fairly full (but necessary) understanding of the context in which that application was made.

Factual overview

16. The events giving rise to the charged offences occurred between 9:07pm and 9:53pm on 30 September 2018 at the complainant’s house in a suburb of Newcastle. Those were the times at which the parties agreed a taxi carrying the appellant arrived at and subsequently left that house (Ex 24). There was never any issue that cunnilingus and digital penetration had taken place at some time in that period. The Crown case in the third trial was that the complainant did not consent to that sexual intercourse, and that the appellant knew that she did not so consent because she resisted and said “no”, “no, Jarryd” and “stop” to him several times before and during the sexual activity. Each of those elements of the charged offences was contested.

Preceding events

17. At the time of the alleged offending, the appellant was a well-known professional footballer who had for several years played in the National Rugby League (NRL). The complainant had never met the appellant, but she knew that he was a well-known footballer. As she had been hospitalised for 6 weeks with a blood inflection a few months prior, she had moved back in and was living with her mother in Newcastle. She was 26 years old.

18. At 1:04am on 17 September 2018, the complainant sent the appellant an unprompted message via the Instagram mobile application (“You are absolutely gorgeous x”). Following this communication, during the next fortnight the complainant and appellant exchanged messages and photographs via the Instagram and Snapchat mobile applications, as well as text messages. These communications included express discussion of sexual matters, and were described by the complainant as being “flirty type sexual type stuff”. A striking example is the complainant’s message to the appellant dated 18 September 2018, in which she said “I’m not going to lie.. I imagined what it would be like to be fucking you when you started talking”.

19. In his opening to the jury, the Crown Prosecutor said these messages “make plain the complainant found [the appellant] sexually attractive”. The complainant accepted in her evidence that at the time of the messages she had a sexual interest in the appellant, and was open to the possibility of having a sexual relationship with him if she thought that doing so felt “right” at the time.

20. The appellant, who lived in Sydney, attended a friend’s buck’s party in Newcastle on Saturday 29 September 2018 and Sunday 30 September 2018. In the course of their messaging throughout this weekend, the appellant and complainant each proposed that they should meet in person. After several of these proposals did not eventuate, at 7:31pm on 30 September 2018, the appellant, who admitted to being “pretty intoxicated” at the time, called the complainant and proposed that he come to see her on his way back to Sydney. Shortly afterwards, the complainant texted her address to him.

21. The complainant said that she wanted the appellant to visit her house so that they could meet each other, but that she “didn’t have a certain expectation of what was going to happen”. At this time, she anticipated that she may “possibly” engage in some sort of sexual activity with the appellant.

22. The appellant said that at no stage prior to him visiting her home had the complainant consented to, or definitively indicated that she was going to consent to, having sex with him. He said of his expectations when deciding to visit the appellant:

Best case scenario would obviously be having sex with her. Worst case scenario I just got - got to introduce myself and then, you know, that was it.

23. A taxi was booked to convey the appellant from Newcastle to Sydney that evening, and during this trip the taxi diverted to the complainant’s house on the pretext that he had to go there to pick up a bag. It was agreed that this taxi arrived at the complainant’s address at 9:07pm.

24. Also on 30 September 2018, and prior to the arrival of the taxi at her house, the complainant had a series of messaging communications with Ms Smiles and, separately, with Mr Page. In her exchanges with Ms Smiles, the complainant disclosed that by 3:21pm she had already “turned down jarryd hayne” (more precisely an invitation to a place where he was with his friends) and later enquired “Should I go see Jarryd Hayne”. In this context, Ms Smiles warned that “footy guys” were “sleeze” and that she should not see the appellant because “it just would have been [for] sex”. The complainant accepted at that time that Ms Smiles was “probably” right about this.

25. The complainant’s messages with Mr Page in the mid-morning and afternoon of 30 September 2018 followed a communication in which the complainant had indicated that she wanted him to come to her house, Mr Page had said that he did not wish to do so, and the complainant had responded that she would get the appellant to come over instead. In that context, in these messages the complainant continued to press Mr Page to “come over” or at least talk to her, and in response he taunted her about the appellant being her “side boy”. The complainant then, it would seem angrily, replied that if Mr Page was not going to keep talking to her she was “going to say yes to jarryd”.

26. When the appellant arrived at the complainant’s house, he was met at the front door either by the complainant’s mother (on his account) or the complainant (on her and her mother’s accounts). Both the appellant and complainant then recall that the appellant went into the complainant’s bedroom, which was at the front of the house. The appellant and complainant, either sitting or lying on her bed, then engaged in some “small talk”, before, at the appellant’s suggestion, doing “sing-a-longs” to three or four songs played on the complainant's laptop.

27. At some time during this “activity”, a car horn “beeped” and the complainant noticed a taxi waiting outside. She asked the appellant if it was waiting for him. Her evidence was that the appellant, still singing and “not really paying attention” to this, said that he could stay “as long as I want[ed]”. The appellant said in his evidence that he confirmed it was his taxi, but did not respond to her asking him why it was there; instead, he “kind of just stared at her”. He also gave evidence that at this time the complainant said something “along the lines of” “did you think you were just going to come here and have sex with me”, to which he in effect responded “it’s up to you really”.

28. Shortly after, the taxi driver, Ms Morel, knocked on the door, which was opened by the complainant’s mother, who then knocked on the complainant’s bedroom door and said to the appellant “the taxi lady’s asking for you”. The appellant then went outside, spoke to the taxi driver, and returned to the house.

Charged conduct

29. From this point the accounts as to the sequence of events differ, as do the narratives about the complainant’s consent to what then occurred. On the Crown case, reflecting the account of the complainant, whilst the appellant was talking to the taxi driver, the complainant’s mother told her that the taxi driver had asked “Is Jarryd here? It’s been 20 minutes”. Upon hearing this, the complainant said that her heart had “dropped”, realising that the appellant had only visited her to have sex. She told her mother that there was “no way” she and the appellant were going to have sex.

30. When the appellant returned, he first went to the loungeroom at the back of the house to watch the end of the NRL Grand Final. The complainant’s mother was also watching the football. He then returned to the complainant’s bedroom, and after a brief conversation walked around to where she was sitting on the bed near the pillows.

31. The appellant lent on the bed, breaking one of the wooden slats supporting the mattress. He then tried to kiss the complainant. She said “no”, and then “no”, “no, Jarryd” and “stop” a number of times during what followed because she did not want him to touch her. The appellant pushed her face down into the pillows, again tried to kiss her, grabbed her pants and pulled them off while she held them, trying to keep them on. He then moved his head to her genitals, put his mouth on her vagina and put one or two fingers in her vagina. Thirty seconds or so later, the complainant started to bleed from her vagina, and the appellant, sensing the blood, stopped. The appellant went into the complainant’s ensuite bathroom to wash himself, and the complainant went into the shower. After a few more brief interactions, the appellant said “I better go”, and left the house.

29. The defence case was that the cunnilingus and digital penetration were consensual. The complainant’s communications with him prior to their meeting demonstrated her obvious sexual interest in him, which manifested in her wanting him to visit her and, when this occurred, their brief but consensual sexual activity. On the appellant’s account, after he had spoken to the taxi driver at the door, he first returned to the complainant’s bedroom and tried to watch the Grand Final on his phone and the complainant’s laptop. When he was unable to do that, he walked into the loungeroom and watched the end of the game with the complainant’s mother.

30. He then returned to the complainant’s bedroom, lay next to her, and began to kiss her. She kissed him in return, and soon they were touching each other’s genitals. They both attempted to remove the complainant’s pants, which she then did herself, and the appellant put his finger in her vagina for 20 to 30 seconds, before putting his mouth on her vagina for a similar amount of time. She was “fine” with all this occurring. Soon afterwards, the appellant noticed blood on his lip, stopped all sexual conduct, and washed himself in the bathroom sink while the complainant showered. Having reassured the complainant that he must have accidentally injured her vagina with his finger, he left the house and took the taxi to Sydney.

Complainant’s conduct after alleged assaults and her subsequent accounts

34. It is not controversial that shortly after the appellant had left the house, the complainant exchanged messages separately with the appellant, Ms Haylie Hartley (her “best” close friend), and Ms Smiles. On the Crown case, the primary complaint evidence was to Ms Hartley, whom the complainant immediately informed about the assault; the complainant’s mother, whom the complainant informed about the assault a day or two later, having initially attributed the blood on the bed to the appellant having a nosebleed; Dr Susanna Smart, a general practitioner with whom the complainant spoke on 3 October 2018; and the complainant’s sister, whom the complainant informed about the assaults on 30 October 2018. The complainant exchanged messages with Ms Smiles (including on Snapchat) within half an hour of the appellant leaving the house. The complainant had earlier sent a message to Ms Hartley but did not receive an immediate response. Her exchanges with Ms Hartley commenced about 30 minutes after the exchange with Ms Smiles. The incident was first reported to the police on 5 November 2018, after the involvement of the NRL Integrity Unit.

35. The complainant’s first contact was with her mother. On 30 September 2018, and after the appellant had left the house, the complainant told her mother that the appellant had a nosebleed and left. She said she did not want to tell her mother about the offending because she “didn’t even really know what it was for [herself]”, “didn’t know what [she] was going to do”, and because she was concerned that her mother would have a panic attack. It was only on 1 or 2 October 2018, after she had spoken to Ms Hartley and Ms Smiles, that the complainant told her mother “what had really happened that night”, saying that the appellant had been “quite forceful and persistent and that he had pulled her pants down and she thought he’d bitten her”.

36. Her second account was to Ms Smiles shortly after the appellant had departed. As the relevant part of this exchange took place via the Snapchat application, which automatically deletes messages shortly after they are read by the recipient, there is no record of what was said. In cross-examination, the complainant’s evidence was that she did not know what she had said to Ms Smiles because she could not remember. The relevant exchange with the cross-examiner is extracted at [59]-[60] below.

37. Ms Smiles’ evidence was that in their exchange on Snapchat, the complainant said that the appellant had “come over, paid for a taxi driver to stay out the front”, that “it was really rushed”, and that he “went down on her”. The complainant was said to have made no reference to her injury and blood, or to the sexual activity having been forced or engaged in without her consent.

38. The third account was to the appellant. Shortly after he had departed the complainant’s house, they exchanged the following text messages (Exs 4 and 7):

COMPLAINANT (at 10:11pm):    I am hurting so much

COMPLAINANT (at 10:39pm):    I know I’ve talked about sex and stuff so much but I didn’t want to do that after knowing the taxi was waiting for you. I thought you would have at least stayed? I am hurting really badly. I told my Mum you got a nose bleed but I’m sitting here in my room crying cause I feel weird

APPELLANT (at 10:41pm):       Go doctor tomorrow

39. In her evidence in chief, the complainant was asked what she meant by “I thought you would have at least stayed?”. She answered:

I meant “stayed” because he knew that he’d injured me. He knew I didn’t want it, he knew- I didn’t mean stay the night. I meant “stayed” because I was hurting. But he just walked out, said he’d better go.

40. The complainant’s fourth account was via text messages to Ms Hartley, also late on 30 September 2018. Among the messages the complainant sent were the following (Ex 8):

(10:54pm) Something just happened and I don’t know what it was

Jarryd hayne just came here

…

(11:01pm) He like got the taxi to wait outside and I heard a beep and was like is that your taxi and he’s like yeah and I said why did you think you’re going to just come here and have sex with me and he’s like no I can stay for as long as I like. And I got mad I was like are you kidding I’m not going to have sex with you for sure now. Then the taxi driver knocked on the door and was like it’s been 20 minutes. Then he started being really pushy like he wanted to have sex and I kept saying no.

(11:03pm) He ended up getting his hand down there and taking my pants off. I was sort of scared but unsure and I wanted to but I also didn’t. And he was being so rough that blood started pouring all over the bed because he tore my vagina

I told mum he got a nose bleed

…

(11:21pm) I didn’t want to do it but I said stop and stuff and then I kind of just let it go because he was so into it and pushy

I just feel like I’ve let it happen to myself by not screaming at him

41. The fifth account was to Dr Smart during a consultation on 3 October 2018. The complainant attended this consultation with Ms Hartley. Dr Smart’s note, made on 3 October 2018, included the following (Ex 11):

seen today with friend Hayley [Hartley]

sunday night- night of footy GF

has been texting jarrod hayne

he visited her house 30-10-18

arrived at house about 9pm

appeared quite drunk

[the complainant] took him upstairs to her room

asked him why taxi was out front

taxi drive came to door after a period of time and said- it’s been 20mins

he then tried to kiss [the complainant] and pressured her for oral sex

[the complainant] said no to sex

while he was performing this she had a lot of pain, he was rough

asked him to stop- only lasted 30 seconds

lots of blood from vagina/vulva-

he had blood on his fingers nad [sic] above upper lip

[the complainant] felt blood on vulva and over sheet/towel

dripping down her leg

he left

[the complainant] txted him and he replied go doctor tomorrow

has been upset, coping ok however

dw [scil. discussed with] her mother, friend

…

Reason for visit:

Vulval pain

Assault

Management:

discussed assault

chooses not to go to police- discussed at length

no need for swabs- no intercourse

…

42. Dr Smart gave evidence in the second trial on 10 March 2021, and her evidence was read onto the record before the jury in the third.

43. That evidence included that on 2 November 2018 she had a further consultation with the complainant in which she was told that the complainant’s brother-in-law had contacted the NRL. Dr Smart perceived the situation was “getting serious” and so “went through” her earlier note with the complainant to “make sure everything in it was correct”. Dr Smart accepted in cross-examination that the complainant’s hand-written corrections to this earlier consultation note were not made in her presence. The complainant made two handwritten annotations on a copy of the note which was signed and dated by her on 7 November 2018: first, she confirmed that she and the appellant went to her bedroom, but that she did not take him “upstairs” (the house not having a second storey); and, secondly, she added after the words “said no to sex” the words “and oral sex” (Ex 11).

44. The sixth account was to the complainant’s sister on 30 October 2018. This communication via a “FaceTime” video call was followed by a Facebook message exchange (the latter being Ex 17). The complainant’s sister gave evidence that:

… [the complainant] said [to her] that Jarryd Hayne had come over to mum and [the complainant’s] house in Fletcher and he wanted her to go to a party and she didn’t want to go to the party. He was a, a bit of an arsehole and had a taxi waiting the whole time and she said that he had tried to go down on her and she said, “Stop” and “No”…

… she had ended up bleeding and she said that she went into her shower and she had watched the blood run out in the shower drain.

45. In a subsequent message exchange at 9:49am on 30 October 2018, the complainant’s sister told the complainant that what had occurred was “rape”, to which the complainant replied “No it’s not” (Ex 17). The complainant’s sister told her husband about what the complainant had said to her, and the husband contacted the NRL Integrity Unit.

Deleted messages and police investigation

46. At some stage after the alleged assaults and before her telephone was provided to the police in November 2018, the complainant deleted some of the messages she had sent to or received from the appellant. The jury in the third trial was told as much in the Crown Prosecutor’s closing address. It was also accepted that by this time her exchanges with Ms Smiles on 30 September 2018, both before and after the incident, were not on the complainant’s phone. That phone also did not have the complainant’s messages to and from Ms Smiles on 20, 21 and 22 November 2018, in which the complainant enquired whether Ms Smiles had a record of their conversation on 30 September 2018 when the complainant had told her “what happened”. Ms Smiles responded that she did not because that conversation took place via Snapchat. Later in that exchange, the complainant also said to Ms Smiles that she did not need to give Ms Smiles’ name to the police. It is not suggested that the complainant had deleted her exchanges with Mr Page from her phone.

47. As at 30 October 2018, the complainant had not made any complaint to the police. Dr Smart’s note of her consultation on 3 October 2018 includes: “discussed assault. chooses not to go to police- discussed at length”. This position ultimately changed, but not at the complainant’s instigation. When the complainant told her sister about the assaults on 30 October 2018, her sister in turn told her own husband. The husband, understanding that the complainant did not wish to make a complaint to the police, contacted a sports journalist. The journalist gave him the phone number of the NRL Integrity Unit. The complainant and her brother-in-law then met with a representative from the NRL Integrity Unit, Karyn Murphy, who said that they should contact the police. With the complainant’s approval, Ms Murphy contacted Detective Sergeant Stek on 5 November 2018.

48. On 7 November 2018, the police produced a walk-through video of the complainant’s home. At some time after, they took possession of the complainant’s phone, which was subjected to a “Cellebrite” investigation in March 2019. That investigation revealed that text messages between the complainant and the appellant on 29 and 30 September 2018 had been deleted. However, the police did not in November 2018 or before November 2020 (the time of the first trial) become aware that the complainant had exchanged messages with Ms Smiles on 30 September 2018, both before and after the incident, as well as with Mr Page.

49. In the course of the third trial, Ex 23 was produced. That exhibit was a chronological list of “relevant” messages, including text messages, that the complainant sent or received. Detective Sergeant Stek agreed that the messages highlighted in yellow “were not given” to the police in November 2018 when they were given possession of the complainant’s phone. Those highlighted included the 22 or so text messages between the complainant and the appellant which had been deleted and recovered in the Cellebrite examination in March 2019. However, the messages to Mr Page in Ex 23 were not recovered during the Cellebrite examination and are not highlighted in yellow in Ex 23. With respect to that examination, Detective Sergeant Stek’s evidence was:

[Whether messages are recovered] just depends on the social medium that they’re using to communicate, whether it be Snapchat or Instagram or whatever else, and the way the settings are in the phone at the time, the, the functionality of the app at the time that allowed it to be saved or not, or, you know, a manual deletion…

50. The evidence does not explain why there was no record of the messages exchanged with Ms Smiles and Mr Page on the complainant’s phone. The appellant’s case was that the message exchanges with the appellant and with Ms Smiles were deleted from the complainant’s phone at some time before late November 2018.

51. Thus, the fact that the message exchanges with Ms Smiles and Mr Page were not communicated to police in November 2018 was established. The evidence in the third trial was that the police did not become aware of these exchanges until about the time of the first trial in November 2020, when they were brought to their attention by lawyers acting for the appellant. That evidence was given by Detective Sergeant Stek. Copies of the messages exchanged with Ms Smiles on 30 September 2018 and before 10:18pm were provided to the Crown before the commencement of the complainant’s cross-examination on 25 November 2020. The remaining exchanges with Ms Smiles, including those on 20, 21 and 22 November 2018, were not produced until shown to the complainant in cross-examination during the first trial.

Complainant’s conduct in November 2021

52. There were also communications between the complainant and Ms Smiles, and between the complainant and Mr Page’s flatmate, on 29 November 2021, the day of the hearing of the appeal to this Court following the second trial (see [87]-[88] below). No evidence of the contents or the effect of those communications was tendered in the third trial.

53. However, the complainant’s interactions with Ms Smiles in September and November 2018 and on 29 November 2021, and her interactions with Mr Page’s flatmate and the police on 29 November 2021, are the subject of ground 2. In relation to Ms Smiles, the appellant’s argument focused on the alleged concealment by the complainant from the police of the September 2018 interactions.

Complainant’s oral evidence in relation to messages (given in first trial on 24 and 25 November 2020)

54. The complainant identified her message exchanges with the appellant, which became exhibits in the third trial. They included Instagram messages exchanged prior to 29 September 2018 (Ex 3), text messages exchanged on 29 and on 30 September 2018 before 10:39pm (Ex 4), text messages exchanged at or after 10:39pm on 30 September 2018 (Ex 7), as well as screen shots of Snapchat message exchanges on 14 and 15 November 2018 (Ex 13). When asked in chief (on 24 November 2020) whether, apart from a conversation with her mother and the messages she had sent to the appellant, she had communicated with anyone else on the night of, but after, the incident, the complainant identified only her “best friend”, Ms Hartley. Later in her evidence in chief (on the morning of 25 November 2020), the complainant made reference to another friend, a Mr Sam McCarthy, but said that there was no one else she had contacted on that evening about “what had happened”.

55. When asked in cross-examination by Mr Boulten SC (later on 25 November 2020) whether on 30 September 2018 she had discussed with “anybody” the possibility of having sex with the appellant, the complainant said that she had “spoke[n] to a girl about him coming over”, and added “[t]here’s messages, I think”. This was no doubt a reference to her Instagram exchanges with Ms Smiles before 10:18pm, copies of which by this time had been provided to the Crown by the appellant’s lawyers. The complainant was then shown her text exchanges with the appellant on 29 and early on 30 September 2018 (Ex 4), and agreed that she had not seen these messages for some time because she deleted messages “all the time”. The complainant said she did not remember when she had deleted these messages with the appellant, describing them as “very embarrassing”.

56. The complainant was then asked whether she had discussed with anybody the idea of inviting the appellant to her home. She answered “Yep… Mum and another girl, Monique”. When asked if she had also told Mr Page, she said she did not think so, but could not remember. The complainant was then shown screen shots of Instagram messages with Ms Smiles, including those exchanged on 30 September 2018 (which became Ex 15 in the third trial). Those screen shots were not taken from the complainant’s phone, and record Instagram messages exchanged between 3:21pm on 30 September 2018 and 10:31pm on 22 November 2018. Mr Boulten first took the complainant through the messages exchanged before the incident, in which Ms Smiles had said that the complainant should not invite the appellant over. At this point in the cross-examination, the complainant became irritated and somewhat hostile to the cross-examiner, asserting that the exchanges with Ms Smiles were “irrelevant” and maintaining that the cross-examiner was “just trying to make me sound stupid”. After a short break, the questioning continued. The complainant agreed that, notwithstanding Ms Smiles’ suggestion that if she were to link up with the appellant “it’d be likely to be for sex”, she did so.

57. The cross-examiner did not at this point take the complainant to the exchanges after the incident. Instead, she was shown screen shots of text exchanges with Mr Page (which were taken from Mr Page’s phone and became Ex 16 in the third trial). She agreed that she had said to Mr Page that the appellant “might well” come to her house. Those exchanges occurred in the context described at [25] above.

58. The cross-examiner returned to the Instagram messages with Ms Smiles, dealing first with the three short messages exchanged after the incident at 10:18pm on 30 September 2018. They were:

COMPLAINANT:   You were right

I’ll snap u. I don’t want to write it here

MS SMILES:      ok babe x

59. The complainant accepted that on the face of these exchanges (which did not include anything as to what was said in their Snapchat exchange that immediately followed) she had said something to Ms Smiles about the incident. The cross-examiner then suggested, there being no documentary record of that Snapchat exchange, that she had told Ms Smiles that the appellant “went down on” her, but had not told Ms Smiles that she had been forced to participate in any sexual activity against her will. Initially, the following propositions were put and qualified answers given:

Q.    … You did not tell her, in any way, shape or form, that Jarryd Hayne had forced himself on you, did you?

A.    No, if those are my messages.

Q.    Nor did you suggest to her that you had been forced to participate in any sexual activity against your will. Do you agree with that?

A.    If you put the messages in front of me, I can have a look.

Q.    How about you attend to the question?

A.    Well, I can’t answer it, no.

60. Eventually, the complainant’s position was made clear:

A.    I don’t know what I’ve said to her. I don’t know her. And to me, I would have thought that I would have told her. Like, if I was going to tell her anything, I would tell her that I was hurt.

Q.    You didn’t tell her that you were forced into having sex, did you?

A.    Well, I don’t know. Get her in here and ask her.

Q.    So you can’t remember.

A.    I can’t remember what I said. But I know exactly what happened, and so does he.

61. At this point, the complainant again became upset and hostile towards the cross-examiner, suggesting that he was “making [things] up” and “making me out to be a liar”.

62. The complainant was then shown the Instagram messages exchanged with Ms Smiles between 20 and 22 November 2018 (which are summarised at [46] above and extracted at [86] below). In this context, the cross-examiner pointed out that in her evidence in chief (given earlier on the same day, 25 November 2020; see [54] above) the complainant had not mentioned Ms Smiles as a person whom she had contacted on the evening of the incident. The complainant responded that in answering that earlier question (directed to contact after the incident) she had “forgotten” about those exchanges with Ms Smiles because she had only seen the “first part” of her exchanges with Ms Smiles (ie those before 10:18pm on 30 September 2018) “yesterday” and that had “now brought back” the fact of her exchanges with Ms Smiles after that time.

63. There is an explanation for the complainant’s reference to having seen the “first part” of those messages in the following exchange between the Crown Prosecutor and the Court at the time Ex 19 (which became Ex 15 in the third trial) was tendered in the first trial:

CROWN PROSECUTOR:    Your Honour, just before this document goes to the jury, this is not a document I’ve actually seen before in its entirety. I misunderstood what was being tendered here.

HIS HONOUR:    Can we just collect any that have been handed out, just for the moment? Ladies and gentlemen, I’m sorry.

CROWN PROSECUTOR:    So, I’d need to review the contents that haven’t previously been shown to the Crown, before I could actually make a concluded view about this tender. I wasn’t aware that it was going to be more than had already been shown to the Crown previously.

64. After responding that seeing the “first part” of those exchanges with Ms Smiles had “now brought back” to her the fact that she had spoken to Ms Smiles after the incident, the complainant said “I have something to say. Can I say it?”. The Court (being the judge in the first trial) responded, ruling that she could not volunteer that information. The cross-examiner moved on to another topic, and in re-examination successfully objected to the Crown eliciting whatever the complainant had sought to volunteer.

65. In re-examination, the complainant said that as at September 2018 she had never met Ms Smiles in person, did not know her “well at all”, and that she only knew her from following her on Instagram.

Grounds 2 and 3

66. These grounds are:

Ground 2:    The trial judge erred in determining that the complainant was not compellable to give further evidence about her interactions with Monique Smiles and Stephen Page.

Ground 3:    A miscarriage of justice was occasioned by the trial judge’s ruling refusing to compel the complainant to give further evidence about her interactions with Monique Smiles.

Criminal Procedure Act, Ch 6, Pt 5, Divs 3 and 4

67. The third trial was a retrial ordered following the appellant’s successful appeal from his convictions in the second. On the face of it, it followed from s 306B of the Criminal Procedure Act 1986 (NSW) that the Crown was entitled to tender as evidence in the third trial a record of the “original evidence” of the complainant (s 306B(1) in Div 3 of Pt 5 of Ch 6). Such evidence was defined as “all evidence given by the complainant… in the proceedings from which the conviction arose” (s 306B(2)), which here would be the second trial. The evidence of the complainant admitted in the second trial was an audio-visual record of the complainant’s evidence in the first trial. Provided that evidence answered the description “evidence given by the complainant” in the second trial, it was admissible upon its tender by the Crown (s 306B(1), (5)); and the complainant could not be required to give any further evidence unless she elected to do so and the Court gave leave for that to occur (ss 306C, 306D).

The application for leave to cross-examine under s 306D(2)

68. The appellant sought leave in the third trial for the complainant to give further oral evidence by way of cross-examination on particular matters. That application was expressed to be made under s 306J. The appellant contended that Div 4, rather than Div 3, of Pt 5 of Ch 6 applied because, in circumstances where the first trial had been “discontinued” for the purpose of s 306I(1), the third trial was a “new trial” in which the Crown had tendered the original evidence given by the complainant in that discontinued trial.

69. The trial judge correctly rejected this argument, concluding that the third trial was a “new trial” ordered following the appellant’s successful appeal against his conviction in the second (s 306B(1)). That being the position, the “original evidence” of the complainant able to be tendered in the third trial was the evidence “given” by her in the second trial, and that description was satisfied by her audio-visual evidence admitted in the second trial under s 306I(1) (the second trial, rather than the third, being a “new trial” listed following the first being discontinued). The definition of “original evidence” in s 306B(2) as “all evidence given by the complainant” in that proceeding contains no qualification as to how that evidence was given, and accordingly included evidence given by the tender of an audio-visual recording.

70. In the result, the trial judge dealt with the appellant’s application as if made under s 306D(2) and (3). Section 306D relevantly provides:

306D Complainant or special witness may elect to give further evidence

(1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division [Div 3], the complainant or special witness may, with leave of the court hearing the proceedings, and only if the complainant or special witness so chooses, give further oral evidence in the proceedings.

(2) The court is to give leave to the complainant or special witness to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant or special witness to give further oral evidence–

(a) to clarify any matters relating to the original evidence of the complainant or special witness, or

(b) to canvas information or material that has become available since the original proceedings, or

(c) in the interests of justice.

(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.

…

71. Because the complainant made clear that she would give evidence in accordance with s 306D if the Court gave leave for her to do so on the appellant’s application, the question whether the audio-visual record of her evidence was admitted in the third trial under Div 3, rather than under Div 4, was of no moment. Had the complainant not been willing to give such evidence, under Div 3 she could not have been compelled to do so (see s 306C), whereas under Div 4 she would have been compellable to give further evidence if the Court were satisfied in accordance with s 306J.

72. Accordingly, the issue for the trial judge was whether under s 306D(2) the complainant should have leave to give further evidence. As formulated in the appellant’s written submissions, the application was for leave to re-call the complainant to permit her to be further cross-examined about the following matters, which the appellant intended to put to the jury in closing address:

a.    In relation Ms Smiles – that the complainant deliberately hid evidence of her interactions with Ms Smiles from police and the prosecutor because she knew it would not support her version, and then tried to influence Ms Smiles in respect of it;

b.    In relation to Mr Page – that the complainant indicated to Mr Page an interest in having sexual intercourse with the accused, that she knew this would not support her version, and that she tried to influence Mr Page in respect of it; and

c.   That the complainant has a motive to lie, namely to secure a financial benefit by way of civil claim in respect of the alleged offences.

73. The trial judge granted leave with respect to the subject matter in (c), namely the complainant’s civil claim for damages for assault brought against the appellant.

74. The application for leave in relation to the complainant’s interactions with Ms Smiles was rejected, the trial judge not being satisfied that it was necessary to re-call the complainant either in the interests of justice or in order properly to canvas the exchanges between the complainant and Ms Smiles. The interactions referred to in the appellant’s written submissions in support of the application were those on 30 September 2018 (before and after the incident) and 29 November 2021 (the hearing day of the appeal to this Court from the outcome of the second trial).

75. With respect to the interactions with Mr Page, the parties agreed that screen shots of the text messages exchanged on 30 September 2018 could be admitted into evidence. Having reached this agreement, the appellant did not press the application to cross-examine the complainant with respect to those documents.

76. Thus, in relation to Mr Page, the trial judge was only called upon to rule on the application to cross-examine the complainant about statements made by the complainant to Mr Page’s flatmate and to the police on 29 November 2021. In relation to that material, in his second judgment delivered on 8 March 2023, the trial judge concluded that it was “not necessary to canvas, clarify or in the interests of justice to ask [the complainant] what was on her mind, or what she was doing on that day, and what she meant by that statement of fact as to the outcome of the appeal”.

77. Accordingly, ground 2 challenges the trial judge’s decision to refuse leave to further cross-examine with respect to two matters — the complainant’s interactions with Ms Smiles on 30 September 2018 and 29 November 2021, and her interactions with Mr Page’s flatmate and the police on 29 November 2021.

Relevant principles

78. Whereas Div 4 of Pt 5 is directed to a new trial for a prescribed sexual offence where the jury has been discharged, or the trial discontinued for any other reason, Div 3 is directed to a new trial following a successful appeal against conviction. In a case to which Div 4 applies, the complainant may not have given all of their evidence, or the jury may have been unable to reach a verdict. In such a case, the evidence in the original proceeding may not have been complete when the proceeding terminated. For that reason, Div 4 includes provisions directed to ensuring that the accused is not being unfairly disadvantaged by the admission of incomplete evidence given in an earlier trial. See the Second Reading Speech for the Bill introducing Div 4 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2006 at 2961-2962).

79. Under Div 3, once a record of the original evidence is admitted, the complainant is “not compellable” to give any further evidence (s 306C). As was explained in the Second Reading Speech for the Bill introducing that Division (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 March 2005 at 14651):

Proposed sections 306C and 306D provide that if a record of the evidence of a complainant is admitted in the new trial proceedings, the complainant will not be compelled to provide any further evidence, but may elect to do so with the leave of the court hearing the new trial proceedings. A complainant who chooses to give further evidence will not be exposed to further questioning “at large” on all matters. Section 306D(3) requires the court to ensure that only questions that are necessary to clarify the record of the original proceedings or to canvas new material that has become available since the original proceedings, or are necessary in the interests of justice are asked of the complainant. Proposed section 306D(4) compels a complainant who commences to give further evidence to remain to answer such limited further questions as the court allows from both the prosecution and the defence.

80. In determining whether the giving of further evidence is “necessary”, “in the interests of justice” or otherwise, it is not contended that the trial judge erred in approaching that question consistently with the observations made by Beech-Jones J in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [40], [41] and [42]. That is, the word “necessary” is a “strong word” and “requires more than the formation of an opinion that something is ‘convenient, reasonable or sensible’” ([40]). Moreover, the phrase “interests of justice” is a “protean one taking its meaning from its context” ([41]), which, in a case like the present, “clearly embraces (and requires) a consideration of the impact on the fairness of the accused’s forthcoming trial if the complainant does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do” ([42]).

81. The unchallenged police evidence, although not expert evidence, was that the complainant had suffered issues relating to her mental health as a result of the criminal proceedings, and that it was likely she would continue to do so if subjected to significant further cross-examination. Nevertheless, the complainant had agreed to give further evidence if required. Ultimately, it was not necessary for the trial judge to weigh these considerations against the prospect of an unfair trial because his Honour concluded that there was no such prospect.

Interactions with Ms Smiles in September and November 2018 and November 2021

82. It is convenient at this point to set out the relevant interactions, including those in November 2018.

83. The complainant exchanged Instagram messages with Ms Smiles on the afternoon of 30 September 2018 between 3:21pm and 5:44pm. Those exchanges included (Ex 15):

COMPLAINANT:   I turned down jarryd hayne […]. I’m a fucking idiot

MS SMILES:      No ur not.. they are both sleeze. Dont go for footy guys.          My ex plays for [an NRL team] and he was a sleeze

COMPLAINANT:   Yeah I don’t know. I still would have gone there

MS SMILES:      Hahaha.. just remember your worth.

COMPLAINANT:   They’re used to getting who they want but he’s still attractive

MS SMILES:   Yeah it’s true but it just would have been sex

COMPLAINANT:   Yeah probably

…

COMPLAINANT:   Should I go see Jarryd Hayne.

…

He sent me the address and said come see me

On Snapchat, he’s with a few guys.

MS SMILES:   Oh hun.. dont. It’s just for sex and ul just feel shit   

COMPLAINANT:   Yeah I won’t   

…

84. They also exchanged the following Instagram messages at 10:18pm, after the appellant had left the complainant’s house:

COMPLAINANT:   You were right

I’ll snap u. I don’t want to write it here

MS SMILES:      ok babe x

85. The complainant and Ms Smiles then communicated via Snapchat. Ms Smiles’ oral evidence given in the third trial was that there was no reference made by the complainant in this communication to her suffering from any injury or anything happening “against her will”. The effect of that evidence was stated in Ex 23 (as to which see [49] above) as follows:

Complainant told Monique that Jarryd had come over, paid for a taxi driver to stay out the front, and it was really rushed, and then he left; that he went down on her.

Monique said “What [did] you expect?” and the complainant responded, “You were right”.

86. There were further exchanges with Ms Smiles on 20, 21 and 22 November 2018, the appellant having been arrested and charged on 19 November. None of these exchanges was in the appellant’s written and oral submissions to the trial judge expressed to be the subject of his application under s 306D(2):

20 November 2018:

COMPLAINANT:   Hey Mon, Can you please message me your number?

It’s important.

Do you still have the conversation we had that night? I think we wrote something about JH joking around but remember I spoke to you afterwards and told you what happened? Do you still have that conversation? It is ok, he has told the police the same story. But it’s important I get that information now.

MS SMILES:       Hey.. no u sent it to me on sna[p]chat

…

COMPLAINANT:   Oh ok th[e]n. Can you please make sure you don’t tell anyone my name. The police haven’t released their statement yet and people and media are just making up their own stories. I don’t want any fucking money and I didn’t go to the cops or the nrl. We didn’t have sex. I might have to give police your name? Is that ok? I forgot I said something to you and they originally asked who knew.

MS SMILES:   Are charges being laid?

COMPLAINANT:   They’ve been layed

…

21 November 2018:

MS SMILES:   Oh right.. well they can contact me

MS SMILES (later):   I actually think il contact them.. who are u dealing with

22 November 2018:

COMPLAINANT:   I sorted it out and spoke to the police. I don’t need to give them your name.

…

87. The final exchange with Ms Smiles occurred on 29 November 2021, apparently prompted by the complainant’s having listened to the argument in this Court in the appellant’s first appeal. The complainant contacted Ms Smiles by Facebook, sending the following messages:

I hope this was worth it for you.

The pain I have endured from all of this is unfathomable. I have never lied. I have never done anything to you and for you to write something to JH about me having him over does not excuse what happened. I did not tell you because it was disgusting and confusing for me. If he gets out you can thank yourself. This has been the hardest most painful thing I’ve ever been through and you can thank yourself for helping a guilty person.

The (indirect) interactions with Mr Page on 29 November 2021

88. The interactions between the complainant and, indirectly, Mr Page were recorded in a NSW Police Force COPS event. That document recorded that on 29 November 2021 the complainant banged on the front door of an apartment unit which Mr Page occupied with a flatmate. When told that Mr Page was not home, the complainant said to the flatmate “Tell Steve he just fucked me with the appeal”. The police later attended the apartment, and the complainant said to the officers “if those messages get out I’m fucked and he will get off”.

Disposition of ground 2 (material relating to Ms Smiles)

89. There is no issue between the parties that the question whether there was an error of the type alleged by ground 2 is to be determined by reference to the correctness standard. The language of s 306D(2), like the language in s 97(1) of the Evidence Act 1995 (NSW), requires an evaluative judgment as to “which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”. See R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] and the decision of Beech-Jones J in WX v R at [39], [73].

Instagram messages exchanged with Ms Smiles in September 2018

90. There is a fundamental issue between the Crown and the appellant as to the matters which the appellant sought to put to the complainant in cross-examination with respect to the messages exchanged between them in September 2018.

91. The Crown submits that the appellant sought to re-call the complainant only to raise for her response the proposition that she “did not tell the police or the prosecutor about [those messages] because she thought those interactions impugned the believability of her account”.

92. This submission of the Crown is supported by the oral and written arguments of the appellant made to the trial judge. Those arguments proceeded in circumstances where it was accepted (1) that Ms Smiles had communicated with the complainant on 30 September 2018 concerning the appellant, both before and after the charged incident; (2) that those communications were not available on the complainant’s telephone by November 2018, when she gave that phone to the police; and (3) that the complainant had not otherwise told the police about those exchanges.

90. Returning to the appellant’s argument before the trial judge, the following exchanges occurred:

HIS HONOUR:    See, as I understood it, a lot of the – let’s just stick with Smiles, a lot of the Smiles forensic benefit is already evidence in the questioning which was conducted.

…

CUNNEEN:    Yes. That’s right, your Honour. This a point which is the main submission by the defence in relation to the Smiles [sic], the final proposition that she was trying to - that she was doing this, knowing that it distracted - that - deliberately concealing these communications knowing that it didn't support her account wasn’t put to her.

…

… it hasn’t been put to [the complainant] that she concealed this series of communications because she knew that she had not made a complaint of non-consensual intercourse.

HIS HONOUR:    But she did complain to somebody else to that effect, almost at the same time, didn’t she?

CUNNEEN:   Yes.

…

HIS HONOUR:    You've already got that [being that no complaint of sexual intercourse against her will was made to Ms Smiles], haven’t you?

CUNNEEN:    Yes, but we would submit, your Honour, that in the interests of justice we must put to her that—

HIS HONOUR:    I hear what you say about the other - the three things being put together.

CUNNEEN:    Yes.

…

HIS HONOUR:   … So, in relation to Smiles what in addition, beyond the fairness of putting it to the complainant potentially again, in Smiles case, in terms; what’s the high point of what you expect to get in terms of the fairness of the trial?

CUNNEEN:   Yes, it was simply that final point, your Honour; that it was all concealed in an effort to remove any material which was inconsistent with her version of non-consensual sex.

HIS HONOUR:    So the only proposition you’d be seeking to put in relation to Smiles is, look, you didn’t tell the police everything about your complaints that evening did you, answer, no. If this is the straight back. And that’s because you’d been trying to conceal the whole story from the police because it doesn’t add up, or it’s not consistent, or something like that.

CUNNEEN:    Yes. And—

HIS HONOUR:    To which, unsurprisingly, one can expect what the response will be; and then that’ll be that won’t it?

CUNNEEN:    Yes, and what she - and then having contacted Ms Smiles—

HIS HONOUR:    I’m putting both of those in a different category just at the moment, in my mind.

CUNNEEN:    Very well, yes.

HIS HONOUR:    And we’ll return to that. But that’s basically it, for Smiles.

CUNNEEN:   Yes, for Smiles. …

94. The appellant’s earlier written submissions were to the same effect:

However, it was not suggested to the complainant that she did not tell the police or the prosecutor about Monique Smiles because she thought those interactions impugned the believability of her account. This is a submission that will be made at the accused’s third trial. Accordingly, in fairness to the complainant, it is in the interests of justice that this is put to her so that she can respond to it (s 306J(1)(c) of the [Criminal Procedure Act]).

95. Thus, it was said that, as a matter of fairness to the complainant, she should be given the opportunity to respond to the proposition that she had deliberately concealed her exchanges with Ms Smiles because she believed they did not support her version of events.

96. The same reason for the re-call of the complainant in relation to this subject is found in the draft direction sought by the appellant in the event that the application to further cross-examine was refused. In that event the proposed direction to the jury included:

The accused applied to this Court for the complainant to be recalled, in fairness to her, so that she could respond to these suggestions of deliberately withholding or curating evidence…

97. In this Court, Mr Game SC, senior counsel for the appellant in the present appeal, maintained that in fact “the gist of what was sought to be put” to the complainant concerning Ms Smiles (and Mr Page) was much more detailed and to the following effect:

In respect of Ms Smiles, if I could just elaborate for example how it would have gone, that she knew that her first account of the incident was to Ms Smiles. She knew that account didn’t disclose non-consensual sex. She sought to find out what Ms Smiles knew or had said or might have said to the police, but she lied to Ms Smiles about what the police required and she did so for the purpose of trying to keep her evidence hidden.

She didn’t tell the police about Ms Smiles. She deleted her messages with Ms Smiles. She didn’t tell the police about the deleted messages. She didn’t reveal Ms Smiles in her evidence in chief and she only did and in a limited way when she knew that the messages were in the possession - I’ll explain this shortly - of the defence because there had been a judgment about the matter two days before. All of this for the purpose of concealing something that impugned her credibility and that her Facebook message to Ms Smiles after the appeal or during the appeal demonstrated that she was quite aware of the significance of what she had said to Ms Smiles. So it was about taking [sic] Ms Smiles, but it relates not just to Ms Smiles, it relates to Mr Page, but it also relates to deletion of other communications; the other communications being with the applicant or the appellant.

98. That submission is not supported by reference to the argument made to the trial judge by senior counsel then appearing for the appellant.

99. Furthermore, in response to the appellant’s argument as extracted above, the Crown disavowed any reliance upon the rule of practice in Browne v Dunn (1893) 6 R 67 at 70-71 as precluding counsel for the accused from making a submission to the jury to the effect of the proposition sought to be put to the complainant.

100. In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [28], Kiefel CJ, Keane and Gleeson JJ described that rule as it might apply in criminal trials:

… [as] a general rule, defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witness’s account and which will be relied upon by the defence.

101. However, as their Honours then observed at [29], citing R v Birks (1990) 19 NSWLR 677 at 688 (Gleeson CJ) and the joint judgment of Gummow, Kirby and Callinan JJ in MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [41], there remain difficulties concerning the operation of that rule in criminal trials:

… Criminal proceedings are not only adversarial. In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so. The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings. Moreover, fairness in the conduct of a criminal trial may have a different practical content and require more restraint on the part of a prosecutor. (Footnotes omitted.)

102. The question of fairness to which the rule is principally directed is fairness to the witness whose evidence may later be said to be contradicted by or inconsistent with a matter with which the witness was not confronted. However, in a criminal trial adherence to this rule by the accused’s counsel in respect of a Crown witness may not be in the accused’s interest. Where there is no burden, the accused and his or her interest may be best served by leaving the Crown evidence “severely alone” in the hope that it does not reach the standard of reasonable certainty or proof beyond reasonable doubt. See McPherson v Copeland (1961) SC (J) 74 at 78 per Lord Thomson, the Lord Justice-Clerk, cited by Gleeson CJ in R v Birks at 688-689.

103. That the complainant had not told the police or the prosecutors about her interactions with Ms Smiles on 30 September 2018, and especially their short exchange after the event, was established by the evidence. The question for the jury was whether her not doing so raised questions as to the reliability and credibility of her version of events. Her exchanges with Ms Smiles in November 2018 suggested that, when first “asked who knew” by the police, she had forgotten that she had spoken to Ms Smiles. Those exchanges also suggested that by late November 2018 the complainant did remember having spoken to Ms Smiles, and believed that she had “told [her] what happened”. When then told by Ms Smiles that there was no record of what was said because it was sent via Snapchat, the complainant had advised Ms Smiles that she did not “have to give police your name”.

104. When confronted in cross-examination in the first trial with the position being that she had not told Ms Smiles about her injury, the bleeding or that she had been pressured and did not consent to the sex which occurred, the complainant responded as set out in [59]-[60] above.

105. As the trial judge observed in his reasons delivered on 8 March 2023:

If the forensic interest is in establishing the proposition that the complainant did not tell the police and the prosecution about the text and Snapchat interactions with Smiles, that is evident from her trial transcript, and indeed seemingly conceded, and that is where the initial concession was made. It is also capable of being established through Ms Smiles’ own evidence, which was compendious - as well as the evidence of the officer-in-charge [Detective Sergeant Stek]. True it is that it is not being suggested directly to the complainant that she did not tell the police or the prosecution about Melanie [sic] Smiles because she thought those actions impugned the believability of her account. There is also an expressed concern the complainant listened to the appeal hearing and then sent Ms Smiles a message. That message purports to explain - and I have read that message, it is in evidence - … why it was that the detail ultimately alleged against the accused by the complainant was not shared with Ms Smiles on the night.

I cannot see that that explanation renders it necessary for the complainant to give evidence. Although, it is only one of a number of matters underpinning the application in respect to this topic. Indeed, it is now known by the defence what her answer to the proposition is likely to be as to why it is she did not make contact. If that evidence is given, as it was in the Facebook message to Ms Smiles, it seemingly, in my view, will not add any discernible weight to the forensic position of the accused or the Crown, and certainly its absence, to my mind, does not seem to me to create any real unfairness.

106. His Honour did not err in so concluding. There was no unfairness to the appellant in the trial judge not granting leave for the complainant to give evidence responding to the broad proposition that she had concealed evidence of these interactions with Ms Smiles from the police because she believed they did not support her version of events. It was not necessary for that proposition to be put before the concealment argument could be made, raising a question as to the credibility and reliability of the complainant’s evidence as to the commission of the offences charged.

107. More significantly, from the appellant’s perspective, it was not argued (by reference to the evidence to be led in the third trial or otherwise) that there was a realistic possibility that, in response to the general proposition or propositions to be put, the complainant might give an answer or explanation that, in the trial judge’s language, would “add any discernible weight to the forensic position of the accused”. That much was conceded in the exchanges between the trial judge and defence counsel towards the end of the extract at [93] above, and was apparent from the messages the complainant had sent and her oral evidence. The November 2018 exchanges with Ms Smiles (which were not the subject of the application) and the complainant’s evidence in cross-examination suggested that the complainant did not recall the fact or content of her Snapchat conversation with Ms Smiles when she first spoke to the police, which occurred in a context where she had no record of that conversation. What that evidence also suggested was that the complainant was not aware at the time of that cross-examination of Ms Smiles’ version of what she had been told after 10:18pm on 30 September 2018. It followed, as the trial judge found, that the absence of the complainant’s further evidence in relation to these messages could not “create any real unfairness” for the appellant, and that the trial judge did not err in refusing to grant leave.

Facebook messages to Ms Smiles on 29 November 2021

108. These messages are extracted at [87] above.

109. The appellant contended that these messages, which were sent on the day of the hearing of the first appeal, were relevant to an assessment of the credibility of the complainant because they demonstrated her as having contacted a witness (Ms Smiles) in an “hostile manner” and “potentially with a view to influencing [her] account”. It was also said that the messages confirmed that the complainant believed that Ms Smiles’ evidence “did not lend support to her account” of the relevant events.

110. The trial judge found that permitting the appellant’s counsel to cross-examine the complainant on these messages would not add to or improve the forensic position of the appellant. His Honour was right to do so. As the trial judge stated, the submission suggesting that the messages were “potentially” sent with a “view to influencing Ms Smiles’ account” was “tenuous”. On the day of the hearing of the first appeal, even if there was a view that the appeal might succeed, it was not known whether there would be any retrial or whether Ms Smiles would give further evidence in any new trial. More significantly, there was nothing in the messages which challenged any part of Ms Smiles’ account; and the Crown was not otherwise proposing to tender these messages as evidence in the third trial.

111. Accordingly, the trial judge did not err in not being satisfied that it was necessary for the appellant to be allowed to cross-examine on these messages, either in the interests of justice, or in order to canvas material which would not otherwise have been in evidence.

Disposition of ground 2 (material relating to Mr Page)

Interactions about Mr Page on 29 November 2021

112. The statements to Mr Page’s flatmate and to the police are extracted in [88] above. The trial judge reasonably construed the complainant’s statements as directed in some way to a connection between Mr Page and what she perceived to be an adverse outcome of the first appeal. Whilst neither statement was likely to reflect something reported to the complainant late on the morning on which that appeal was argued, each could possibly be the result of something earlier said to the complainant as to the perceived prospects of the appeal in relation to the ground asserting that there was error in the admission of Mr Page’s messages into evidence (as to which see [2022] NSWCCA 11 at [56]-[87]).

113. However, the trial judge did not err in concluding that cross-examination on those statements could not affect the existence of any fact in issue in the third trial.

114. The appellant makes two submissions. First, it is said that the complainant’s “hostile and aggressive” interactions with Mr Page after the hearing of the appeal support an inference that the complainant (three years earlier) was “actively trying to avoid the police becoming aware” of Mr Page. Why that follows is not readily apparent having regard to the nature of the statements, the fact that the evidence did not establish that Mr Page’s exchanges were deleted (see Ex 23), and the fact that it had been agreed that they were not to be the subject of any cross-examination. Secondly, it was submitted that the complainant visited Mr Page’s home unit “potentially with the intention of influencing him in respect of his evidence”. The relevant aspect of his evidence is also not readily apparent or explained. Mr Page was not a witness in either of the first or second trials, and it was not proposed by the Crown that he be a witness in the third.

115. The trial judge was correct to conclude that it was not necessary either in the interest of justice or otherwise to canvas the November 2021 material relating to Mr Page that the appellant cross-examine the complainant.

Conclusion (ground 2)

116. The appellant’s submission, as recorded in the trial judge’s first judgment on 8 March 2023, includes that “all three areas of proposed further examination must be seen as a whole”. In his second judgment, the trial judge did not return to this aspect of the appellant’s argument. By that time, the application in respect of the interactions with Ms Smiles had been rejected, and the application in relation to the civil claim had been allowed. The application which remained in relation to Mr Page was limited to the interactions in November 2021 with his flatmate and police.

117. Although the application for leave under s 306D(2) was made in respect of three matters, I accept that it remained for the trial judge to assess the question of leave separately in respect of each of them. Whilst each was relied upon as part of an overall attack on the complainant’s credibility, it nevertheless required consideration of their separate subject matters — the interactions with Ms Smiles in September 2018, and the quite different interactions with Ms Smiles, Mr Page’s flatmate and the police, in November 2021.

118. Finally, there is nothing in the foregoing analysis which supports a different conclusion under s 306D(2) in relation to the three matters if considered together.

119. Ground 2 should be dismissed in relation to each conviction.

Disposition of ground 3

120. This ground relies on the third limb of Criminal Appeal Act, s 6(1), namely that there was a “miscarriage of justice” which resulted from the trial judge’s refusal to permit the appellant to cross-examine the complainant about her exchanges with Ms Smiles, and, at the same time, his Honour’s giving a direction to the jury on “lies”. That direction is said to have “precluded” the jury from considering the appellant’s case that the complainant had concealed evidence of her interactions with Ms Smiles because those interactions did not support her version of events.

121. In Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 at [165]-[166], this Court said of the third limb of s 6(1):

Rulings on questions of procedure, and rulings on the admissibility of evidence, are decisions of law, and may be challenged as errors of law… To the extent that a ruling is said to be erroneous, that issue must be determined in the light of the circumstances that existed, and were known, at the time of the ruling. It cannot be said that a ruling involved error of law by reason of events or circumstances that arise subsequently.

In this case, many rulings on the admissibility of evidence were made before the jury trial commenced. A jury trial is frequently fluid; circumstances change, subsequent events may cast a different light on evidence quite properly ruled to have been admissible. Those changed circumstances do not render an earlier ruling erroneous in law. They may indicate that, by reason (for example) of changed circumstances, an earlier ruling has given rise to a miscarriage of justice – [engaging the third limb of s 6(1)]. (Emphasis in original.)

122. The appellant contends that even if the trial judge did not err in rejecting his application under s 306D(2) in relation to the giving of further evidence about the complainant’s interactions with Ms Smiles, his direction as to “lies” precluded the jury from considering the defence’s “concealment case”, resulting in a miscarriage of justice.

123. The Crown’s submissions in response included:

1. the “lies” direction was an appropriate direction to the jury as to their reasoning process before drawing conclusions as to lies. It did not preclude the jury from making findings about lies or properly considering any submissions made on behalf of the appellant;

418. The applicant's counsel submitted that ground 1 does not turn on whether the applicant's evidence gives rise to a reasonable doubt about the complainant's account, but that the applicant's account should be considered by the Court, in deciding whether the Court can accept the complainant's account beyond reasonable doubt. Counsel submitted that the applicant's evidence was consistent with what he said about the incident afterwards and he made appropriate concessions.

419. Counsel submitted that the Court should have a reasonable doubt about the complainant's account and acquit the applicant. Counsel submitted the complainant’s evidence lacked credibility for reasons which are not explained by the manner in which it was given, such that a reasonable doubt experienced by this Court is a doubt which the jury should have had.

420. Counsel relied on the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63.

421. Counsel referred the High Court's decision in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]:

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

438. Counsel submitted the "assumption" referred to by the Court in that paragraph is not a presumption.

Crown’s submissions

439. The Crown submitted that the complainant gave a very consistent account, that she was straightforward and open about her attraction to the applicant but was clear that there was no plan for sex. The Crown submitted that in the complainant's account, the pivotal moment for her was realising the taxi was outside and from that moment there was no consent to sex, and she expressed that to her mother while the applicant was outside talking to the taxi driver, and made it known to the applicant, who persisted and only stopped because the complainant was bleeding.

440. The Crown submitted that the applicant gave evidence that he was aware after he spoke to the taxi driver that the complainant was upset and did not consent to sex. The Crown submitted that the applicant's description in his evidence of the sexual activity did not explain the complainant's injuries.

441. The Crown submitted that there is considerable evidence of complaint from persons close to the complainant to whom she might be expected to complain, and to Dr Nittis, and the complaints are consistent, especially as to roughness, her saying no and the taxi.

442. The Crown submitted that the complainant's complaint to the applicant afterwards was also consistent: “I didn't want to do that, after knowing the taxi was waiting".

443. The Crown submitted that the complainant gave an explanation of her mother's panic attacks for why she did not complain to her mother on the night, but she told her mother the next day what had happened.

444. The Crown submitted that in her unambiguous complaint to Hailey Hartley, her best friend, the complainant maintained she did not consent to any of the sexual activity which happened.

445. The Crown submitted that when the complainant told her sister what had happened she was observed to be upset and she said she had said “No” and “Stop”. The Crown submitted that the complainant's denial of rape to her sister was consistent with her view that rape required penile-vaginal intercourse.

446. The Crown submitted it was well open to the jury to regard the timing and content of the complaints as very supportive of the complainant's reliability and honesty.

447. The Crown submitted in respect of the amendment to Dr Smart's notes that it was not that the complainant took the initiative as to Dr Smart revisiting her notes, but rather that Dr Smart wanted to check that her notes were correct because she felt the situation was becoming serious, a complaint having been made. The Crown submitted it was not a revisionist attempt by the complainant to change what she had told the doctor, or the complainant curating the evidence.

448. The Crown submitted that the original typed note of the complainant's complaint to Dr Smart gives significant support to the credibility of the complainant’s account of a non-consensual encounter, and the handwritten addition in respect of oral sex was simply the complainant making clear that she did not consent to oral sex.

449. The Crown submitted that the lack of complaint to Monique Smiles was explicable, having regard to the nature of their acquaintanceship.

450. The Crown submitted that the applicant's submission that the complainant sought to remove Monique Smiles from the narrative should not be accepted, as the complainant volunteered Monique Smiles’ name in cross-examination as a person she had told the applicant was coming over to her place.

451. As to the assertion of the complainant deleting messages, the Crown relied on Snapchat messages not lasting and submitted that the complainant’s evidence that she deleted messages all the time, which was not challenged further by the applicant's trial counsel, should be accepted.

452. The Crown submitted that the applicant's submission that the complainant’s evidence left unaccounted for minutes in the timeframe between the end of the grand final and the applicant leaving does not withstand scrutiny when regard is had to the events recounted in the complainant's evidence at that time. The Crown submitted that the complainant's account of times which actions took is a peripheral matter which complainants sometimes do not remember, but that she recalled specific details of the assaults. The Crown submitted that the times in the complainant's account should not lead to an assessment that her credibility was undermined.

453. The Crown submitted that the complainant's texts to Stephen Page and Monique Smiles did not demonstrate general emotional changeability about the complainant, as the applicant had submitted.

454. The Crown submitted that the applicant's evidence in the trial was inconsistent and implausible. The Crown submitted that the applicant’s awareness and acceptance that the complainant did not want to have sex with him is not easily irreconcilable with his trying to "hook up with her”, commencing by kissing her.

455. The Crown submitted that the jury had the advantage, given the credibility issues, and that both the complainant and applicant gave evidence. The Crown submitted that this Court must not disregard or discount that the jury is the body entrusted with the primary responsibility of determining guilt and had the benefit of seeing and hearing the witnesses.

456. Therefore, the Crown submitted that there is no significant possibility that an innocent person has been convicted, and the appeal should be dismissed.

Consideration

457. The charges before the Court required the Crown to prove beyond reasonable doubt two acts of sexual intercourse (which were not disputed), that the complainant did not consent to either act, of which she gave evidence, and that the applicant knew that she was not consenting to each act of sexual intercourse at the time it occurred. Proof of the last element required the jury to accept the complainant's evidence that she said "No" and “Stop" to the applicant when he was performing the relevant acts.

458. The task of this Court is to make an independent assessment of the sufficiency and quality of the evidence adduced at the trial, however, making allowance for the advantage enjoyed by the jury in seeing and hearing the witnesses, as stated by the High Court in M v The Queen (at 493-5):

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the 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. On the contrary, the court must pay full regard to those considerations.

…

It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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.”

459. The test formulated in M v The Queen has been affirmed in subsequent decisions of the High Court, to which further reference is not required in the circumstances of this case.

460. As the Crown case rested heavily on the evidence of the complainant, although the Crown relied on complaint evidence to support her evidence, the focus of this Court in its independent assessment of the sufficiency and quality of the evidence must focus on the complainant's evidence.

461. As the applicant submitted, the complainant's account of events after the applicant returned to the house from speaking to the taxi driver, does not appear to account for the timeframe between the agreed time of the football match ending and the agreed approximate time of the applicant departing the house in the taxi. However, that is a small point and not sufficient to undermine the complainant's credibility.

462. The complainant made no complaints to her mother, who was in the house at the time of the asserted assaults. Her explanation for not calling out to her mother was her mother's mental health or anxiety. That explanation can be accepted but it is not entirely convincing that the complainant did not raise the alarm with her mother, who was in the house and not too far away, especially since on their evidence they had discussed that the complainant would not agree to sex with the applicant when he was outside talking to the taxi driver. That is one factor which impacts adversely on the credibility of the complainant's evidence.

463. The complainant made no complaint to her mother after the applicant had left the house. Instead, she told her mother that the applicant had suffered a nosebleed. She said this was to explain the appearance of blood on the bedclothes and towels in her room. Again, her explanation was that she did not wish to cause her mother anxiety. Again, it is an explanation which can be accepted but again, is not entirely convincing. On the evidence the relationship between the complainant and her mother seemed close; indeed, the complainant was living with her mother who had rented new premises to look after her daughter while she was recuperating from an illness.

464. The complainant said she complained to her mother the next day. Her mother’s evidence of that complaint included that the complainant had said that she had said no to the applicant at the time of the sexual acts.

465. The injuries the complainant suffered do not indicate anything about whether the acts occurred with consent or without consent.

466. The complainant's messages to the applicant after he left the house were “I'm hurting so much” (10:11pm), and:

"I know I've talked about sex and stuff so much but I didn't want to do that after knowing the taxi was waiting for you. I thought you would have at least stayed? I am hurting really badly. I told my mum you got a nosebleed but I'm sitting in my room crying cos I feel weird" (10:39pm).

467. It was the position of both the complainant and applicant that when they referred to sex they meant penile-vaginal intercourse and it was the agreed position of both of them that after the complainant became aware that the applicant had a taxi waiting outside that she did not consent to penile-vaginal intercourse. The complainant’s messages to the applicant are not an unequivocal allegation of having been sexually assaulted in the way charged. The reference to hurting appears to be a reference to a physical injury she suffered, although could be construed more broadly. "I didn't want to do that" may be a reference to sexual intercourse or sexual activity more broadly. The comment "I thought you would have at least stayed" appears to be a reference to the applicant leaving soon after the complainant's injury became apparent and her unhappiness that he left so soon. This is not strong evidence of complaint or accusation of the offences charged.

468. At 10:15pm the complainant sent a text to her friend Hailey, but Hailey did not immediately respond, so the complainant's first complaint was to Monique Smiles, in terms "You were right". Then the evidence was that in Snapchat messages, the complainant told Ms Smiles that the applicant had come over, paid for a taxi driver to stay out the front, it was really rushed and then he left, and he went down on her. The evidence was that Monique Smiles said "What did you expect?" and the complainant responded “You were right". That is not in its terms a complaint of sexual assault. It appears to be a rueful agreement that, as Monique Smiles had warned the complainant in their communications during that day when discussing the applicant, that he would only be coming to see the complainant for sex and she would feel bad. That is in substance what the complainant said to Monique Smiles on that night. The complainant’s explanation that she was not close enough to Monique Smiles to tell her that she had been sexually assaulted by the applicant is not convincing, given the personal tone of their communications earlier on that day about the applicant and the complainant’s interest in him.

469. Her not disclosing Ms Smiles and their communications to the police, when her account to her was not consistent with her allegations, is a matter which seriously adversely affects the complainant's credibility. Her statement to Ms Smiles that she had spoken to police and did not need to tell police Ms Smiles’ name was at least misleading, because the evidence from the police was that they had not been told of Ms Smiles and were not aware of her until the applicant's first trial in 2020.

470. The complainant's complaint to Hailey Hartley contains some elements of the complainant having said "No" and that she “didn't want to”, but there are also equivocal elements. Certainly she expresses concern to Ms Hartley about the injury. Then she says:

“I didn't want to do it but I said stop and stuff and then I kind of just let it go because he was so into it and pushy

I feel like I’ve let it happen to myself by not screaming at him”

471. That casts some doubt on whether the Crown has established beyond reasonable doubt that the applicant knew the complainant was not consenting to the acts of sexual intercourse.

472. The complainant's complaint to Dr Smart on 3 October, as initially recorded by Dr Smart, is not inconsistent with the applicant's account, as both the applicant and complainant defined sex as penile-vaginal intercourse and the history as recorded by the doctor included that the complainant said no to sex.

473. It is accurate that the doctor asked to check the notes when she became aware of a complaint having been made, to at least the NRL, but for the complainant to take the doctor's notes away and make handwritten amendments on them some days later on her own is very unusual. The complainant’s handwritten addition to the doctor’s notes that she also said no to oral sex can be construed as her adding something she told the doctor and the doctor did not record, or adding something she forgot to tell the doctor but maintained was her account, or adding something to make the doctor’s record consistent with her allegations. The latter construction is quite adverse to the complainant's credibility. There is no reason why it is not an acceptable construction, particularly in combination with the lack of complaint to some people immediately after the alleged offences and the lack of disclosure of Ms Smiles and their communications to the police.

474. The complaint to the complainant’s sister is consistent with her allegations, but it was made a month after the event and in the circumstances of this case does not provide strong support for the complainant's evidence.

475. The history given by the complainant to Dr Nittis on 12 November, about six weeks after the 30th of September, again is consistent with the allegation the complainant had made by then, but given the timelapse does not have the strength of an immediate complaint in those terms.

476. The applicant’s candid account of what happened in his intercepted phone calls is acceptable and not implausible.

477. The applicant’s evidence was consistent, not implausible, he was frank and candid about his desire to have sexual intercourse with the complainant if the circumstances arose, and he credibly maintained his account in cross-examination. There is no reason why his evidence should not be accepted as a reasonably possible version of events.

478. The matters I have referred to above about the complainant's evidence are significantly adverse to the honesty and reliability of her evidence. It is clear the complainant was upset about the taxi waiting outside. It is clear she did not agree to having penile-vaginal intercourse with the applicant once she knew the taxi was waiting for him. It is clear the complainant was upset about her injuries.

479. It is not clear, to the requisite standard, that she did not consent to the two sexual acts which occurred, or, if she did not, that the applicant knew that. On my own assessment of the quality and sufficiency of the evidence I have a reasonable doubt that the applicant committed the offences charged. I am not of the view that the advantage enjoyed by the jury in seeing and hearing the complainant give evidence was capable of resolving that doubt. I am of the view there is a significant possibility that an innocent person has been convicted. Therefore, I am of the view that the verdicts of guilty are unreasonable.

480. I would uphold ground 1 and would propose verdicts of acquittal on counts 1 and 2. However, having read the judgments of Meagher JA and Rothman J, I am aware that my view about ground 1 is a minority view.

Grounds 2 and 3

481. In relation to grounds 2 and 3, I have had the benefit of reading in draft the judgments of Meagher JA and Rothman J. I gratefully acknowledge, and will not repeat, their Honours’ exposition of the factual and legal background to those grounds.

482. I am of the view that the trial judge erred in not giving leave for the complainant to give further evidence in the third trial, to be cross-examined about her communications with Monique Smiles, on 30 September 2018, in November 2018 and on 29 November 2021, and her views conveyed that same day about Stephen Page ("If those messages get out I’m fucked and he will get off"). Those matters were significant to the credibility of the complainant, which was the critical issue in the trial. The evidence of the complainant's not disclosing to police or the Crown her communications with Monique Smiles in September 2018 and November 2018, and her views expressed on 29 November 2021 about Ms Smiles’s evidence and the messages with Mr Page, had the capacity to demonstrate consciousness by the complainant that the evidence of her communications with those witnesses did not support her account of the events the subject of the charges.

481. The complainant had indicated that she chose to give further evidence.

482. It was not appropriate for the trial judge to anticipate how the complainant would answer further questioning by trial counsel for the applicant as a basis to refuse the application or decide that it was not necessary in the interests of justice to give leave to the complainant to give further evidence. The trial judge's assumption of how the complainant would answer the questions sought to be asked could not be a factor in his determination of the application. It was for the jury to have the opportunity to see how the complainant answered the questions asked, assess her answers and the way she gave them, and decide if they accepted her answers. Nor was it appropriate for the trial judge to take into account his view of the complainant's reactions on the day of the hearing of the first appeal in this Court in refusing the application.

483. It is not clear why, when the complainant was willing to give further evidence, and the trial judge permitted her to be cross-examined about the civil claim she had commenced against the applicant, his Honour did not permit her to be cross-examined on the topics which were potentially as significant, if not more significant, to the credibility of her evidence.

484. It was necessary in the interests of justice that the trial judge give leave for the complainant to give the evidence in the proceedings, to be cross-examined on those subjects, to permit the then accused to fairly and fully present his case to the jury about the credibility of the complainant's allegations and evidence.

485. Further, the way the trial developed on the topic of the complainant's dealings with Ms Smiles gave rise to a miscarriage of justice. When the trial judge was considering the application by trial counsel for the applicant to further cross-examine the complainant, the Crown Prosecutor said to his Honour that if what was sought to be put to the complainant was that she deliberately concealed Ms Smiles because she understood that their communications did not support her version, it would be open for that proposition to be put to the jury without the proposition being put to the complainant.

486. In her closing address to the jury trial counsel for the then accused made submissions about the complainant having curated the evidence to support herself, crafted evidence, made up evidence to assist herself, concealed the messages with Monique Smiles from investigators, concealed Ms Smiles, concealed her exchange with Stephen Page, and lied in her evidence by not mentioning Monique Smiles when asked who she had spoken to on the night of 30 September. Senior Counsel compared what the complainant had said to Monique Smiles and Hailey Hartley on the night of 30 September. She then said "That was just lies. She did lie, ladies and gentlemen. She lied about Monique Smiles and she was shocked when it came out…".

487. During the summing up the trial judge said to the jury:

"Can I just say this to you in a couple of respects, some submissions have been made to you. One was about the complainant telling lies in relation to matters which were not necessarily directed to the particulars of the evening.

…

… In relation to lies I am going to give you a direction in relation to that. You just want to be a bit careful in ensuring that before drawing a conclusion, this is not in relation to the fundamental allegations related to the night, but in terms of, for example, deletions from the phone, for example, in relation to the statement of claim and so forth. When you review the question of lies, that's a matter that you would want to consider is fairly put and fairly arises. It is not a consistent notion that you can just make that allegation without having given the opportunity to the person to answer whether or not, for example, they were mistaken, they were confused, they didn't understand their position, and so forth."

490. After the summing up had finished and the jury had retired to consider its verdicts, Senior Counsel for the accused said:

"May I simply make this submission, that the latter part of the summing up had what may be perceived to be an imbalance in this way, that your Honour told the jury to scrutinise the submission about lies…".

491. The following morning, Senior Counsel for the accused told the judge:

"Yes, and furthermore, your Honour, just on that point, may I just put on the record that the Crown did agree in s 306D argument that the defence would be able to put those matters to her as lies, that she had lied in relation to Smiles. We would submit that nothing untoward was said in that section of the closing."

492. His Honour said "Do I apprehend from your demeanour, Mr Crown, that that's not something you’d accept?".

493. The Crown Prosecutor said:

"My understanding was that the line of cross-examination was going to simply put to the witness that she deleted certain messages to curate them. That's as high as I can put it."

494. His Honour said:

"I'm not going to get into an unedifying arbitration as to what counsel did or did not agree. Ms Cuneen makes the assertion and Mr Crown doesn't contradict it."

495. As I have noted above, the Crown Prosecutor, albeit a different Crown Prosecutor who presented the argument on behalf of the Crown opposing the complainant being cross-examined about the Monique Smiles and Stephen Page issues, had conceded that such a submission was open. The trial judge, having not permitted counsel to cross-examine the complainant about those matters, then criticised her for making the submission to the jury without putting the matter to the complainant and effectively told the jury to disregard that submission.

496. The Crown in the hearing of this appeal sought to distinguish between submissions about concealing evidence and submissions about the complainant lying. Having read the whole of Senior Counsel's closing address to the jury I am of the view that was not a distinction counsel made in her address, nor is it a sustainable distinction in this case. The whole tenor of counsel’s submission to the jury was that by concealing from the police her interactions with Ms Smiles and Mr Page, the complainant was not presenting an honest account of what had occurred on the relevant night.

497. The jury was required to decide whether they were satisfied beyond reasonable doubt that the complainant's evidence was honest and accurate. The trial judge prevented counsel from asking questions on those topics and then when counsel addressed the jury about the complainant's dishonesty, effectively told the jury that it was an unfair submission by counsel for the accused because it had not been put to the complainant to permit her to respond. That was the very thing counsel had applied to do.

498. The jury were deprived of evidence which had significance for their assessment of the honesty of the complainant. By not permitting counsel to cross-examine the complainant on those topics and then telling the jury that in considering the submission that the complainant had lied about matters including deletions from her phone, they should consider whether that was "fairly put", this created an unfairness in the accused’s trial. The combined effect of those circumstances was to cause a miscarriage of justice in the trial.

499. I would uphold grounds 2 and 3. Although in respect of ground 1 I would order the appellant’s acquittal on both counts, the appellant’s success on grounds 2 and 3 would ordinarily give rise to consideration of a new trial. I am of the view that in the circumstances of the history of this matter, to put the applicant on trial for a fourth time would not be in the interests of justice. I appreciate that is a decision for the Director of Public Prosecutions.

500. I agree with the orders proposed by Rothman J.

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Amendments

18 June 2024 - Representation details updated

Decision last updated: 18 June 2024