Houshyar v The The King

[2022] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Houshyar v R [2022] NSWCCA 245

Hearing dates:

26 September 2022

Date of orders:

09 December 2022

Decision date:

09 December 2022

Before:

Garling J at [1]
Adamson J at [176]
N Adams J at [177]

Decision:

(1)   Leave to appeal be granted;

(2)   The appeal be dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Offence contrary to s 38(b) of the Crimes Act 1900 of causing a person to take an intoxicating substance with intent to commit an indictable offence — Further offences of sexual intercourse without consent and larceny committed while complainant was unconscious as a result of the intoxicating substance — Circumstantial case which relied on the complainant’s account and also expert pharmacological evidence — Whether all reasonable hypotheses consistent with innocence were excluded — Open to jury to exclude those reasonable hypotheses — Appeal dismissed

Legislation Cited:

Crimes Act 1900 ss 38(b), 61I, 117

Criminal Appeal Act 1912 s 6(1)

Cases Cited:

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

Dansie v The Queen [2022] HCA 25; 96 ALJR 728

Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16

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

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

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1

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

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

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Texts Cited:

Not applicable

Category:

Principal judgment

Parties:

Mohammadreza Aghajani Houshyar (Applicant)
The Crown (Respondent)

Representation:

Counsel:
GE Lewer / C Akthar (Applicant)
E Nicholson (Respondent)

Solicitors:
Hugo Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/107061; 2020/1869

Publication restriction:

Publication of any matter which identifies or which is likely to lead to the identification of the complainant is prohibited: Crimes Act 1900 s 578A.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 July 2020

Before:

Flannery SC DCJ

File Number(s):

2019/107061

Judgment

1. GARLING J: The applicant, Mohammadreza Aghajani Houshyar, seeks leave to appeal the convictions which were entered on 27 July 2020, after a trial before Flannery SC DCJ and a jury at the Sydney District Court.

2. The applicant was convicted of the following four counts which were on an Indictment:

1. Count 1: Cause person to take intoxicating substance with intent to commit an indictable offence (being the offences of larceny and sexual assault), contrary to s 38(b) of the Crimes Act 1900;

2. Count 2: Sexual intercourse without consent, contrary to s 61I of the Crimes Act;

3. Count 3: Larceny, contrary to s 117 of the Crimes Act (relating to $6000 in Australian currency); and

4. Count 4: Larceny, contrary to s 117 of the Crimes Act (relating to an Apple iPhone).

3. On 18 February 2021, the applicant was sentenced by Flannery SC DCJ for those four offences and other unrelated matters to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years commencing on 2 January 2020. The non-parole period expires on 1 January 2025. The aggregate head sentence expires on 1 January 2028.

Notice and Ground of Appeal

4. On 18 March 2021, the applicant filed a Notice of Intention to Apply for Leave to Appeal his convictions.

5. On 13 April 2022, almost four weeks after the Notice of Intention to Apply for Leave to Appeal ceased to have effect, the applicant filed a Notice of Appeal.

6. The sole ground of appeal is that the verdicts are unreasonable and not supported by the evidence.

Summary of the Crown Case

7. In brief summary, the Crown case was that on 4 February 2019, the applicant engaged the services of the complainant, a sex worker, to attend an apartment at Surry Hills. There, the applicant provided her with a drink which contained, unbeknownst to the complainant, a significant quantity of gamma-hydroxybutyrate (“GHB”) which caused her to lose consciousness. Many hours later, the complainant awoke to discover that she was alone in the same apartment. Her clothes had been removed and urinated on, her vagina was injured, and her cash and mobile phone had been taken.

8. The complainant immediately attended the Surry Hills police station and participated in a Sexual Assault Investigation Kit examination and a recorded interview.

9. The Crown case is a circumstantial one in that neither the complainant nor any other witness is able to give direct evidence of the sexual assault or the larcenies which the applicant is said to have committed. The Crown relies on evidence of the injuries which were occasioned to the complainant, the presence of the applicant’s seminal fluid in the complainant’s vagina and closed-circuit television (“CCTV”) which recorded the applicant’s behaviour whilst in an area outside the apartment.

Evidence in the Crown Case

The Complainant

10. The complainant, 22 when she gave evidence, said that she met the applicant on 20 January 2019, when the applicant first engaged her services to attend his apartment at Waterloo. On that occasion, the applicant paid the complainant for an hour of her services, although she stayed with him for a much longer period. During that time, they consumed drugs provided by the applicant, including cocaine, methamphetamine and GHB. They had consensual sexual intercourse during which the applicant wore a condom. The complainant told the applicant that she would not have unprotected sexual intercourse and was careful to ensure that that did not occur.

11. Between around 11pm on Sunday 3 February 2019 and 4am on Monday 4 February 2019, the complainant was engaged by another client with whom she drank alcohol, consumed cocaine and had penile-vaginal sex.

12. At around 2am on Monday 4 February 2019, the complainant received text messages from the applicant. She replied to him saying she was free to meet him around 4:30am and asked where he was. He said he was staying at a different address in Surry Hills. The complainant asked if the applicant had any methamphetamine or GHB, and the applicant said that he did.

13. The complainant arrived at the applicant’s apartment at around 5am. She was greeted by the applicant who collected a black backpack from a garden area before going up to the apartment with her. Inside the apartment, the complainant noticed that there was a 600mL plastic bottle filled with a clear substance, which she assumed was GHB. She also noticed that the applicant was using a black Samsung mobile phone, although she acknowledged that he had previously used a white iPhone.

14. The applicant and complainant smoked methamphetamine and talked. The applicant told the complainant that someone had stolen a lot of his money and that his daughter lived in Italy and that he sent her roughly $2,000 a month to help support her. He showed her a Facebook post with a receipt for one such transfer which she recalled was via the Bank of America. The complainant felt bad for the applicant and offered him two $50 notes, which although he rejected, she left on a side table.

15. Around 7am, the applicant went to the kitchen and brought back a glass of what he said was water and what the complainant identified as “sparkling-looking” water. The complainant drank it within around five minutes. The applicant and complainant moved to another bed and kept talking. The complainant said it was not sexual at all, although the applicant was lightly caressing her arm. She had brought three condoms with her in case the booking became sexual, but they had not discussed engaging in sexual acts. The complainant was fully clothed and the applicant was also clothed although he was not wearing a shirt.

16. The complainant’s next memory was of waking up, alone and unclothed, on the same bed in the same apartment. The complainant realised that she had urinated on herself, which she had never done before. Her underwear and shorts were on the floor next to the bed and smelled of urine. Her vagina felt sore, bruised and tender. She went to the toilet and when she wiped herself there was blood.

17. The complainant located her bag and saw her sunglasses, headphones, wallet and the three unopened condoms which she had brought with her. Her phone was not in her bag or under the pillow where she had left it, and it has not subsequently been recovered. $6,000 cash had been taken from her wallet, leaving only one $50 note.

18. The complainant began to cry and as she was changing her clothes, the landlady, Claire Williams, entered the apartment. Ms Williams indicated that the applicant had been staying at the apartment under the name of “Laura”, and the applicant did not answer when Ms Williams called the number she had for him. At Ms Williams’ suggestion, the complainant walked directly to the Surry Hills Police Station.

19. There she made a complaint to police officers that she had been drugged, assaulted and her things had been stolen. She showed them the address where the alleged offences occurred, as well as the address where she first met the applicant. The police took her to the Royal Prince Alfred Hospital where the complainant participated in a recorded interview with police and was examined by a counsellor and a doctor. The doctor took swabs from around the complainant’s genitalia and noted injuries which she had sustained.

20. The complainant gave evidence that she was not injured before she met the applicant on 4 February 2019, and that she had not taken alprazolam (Xanax) for about a week and that she had last taken 3,4‑methylenedioxymethamphetamine (“MDMA”) at 7pm on Sunday, 3 February 2019.

21. On earlier occasions, she had taken various drugs recreationally, in various combinations, including GHB, ketamine, cocaine, MDMA and methamphetamine. She used diazepam (Valium) for her anxiety a couple of times a week. She was experienced with taking recreational doses of GHB, and the largest dose she had taken previously had caused her to become unconscious for 15 minutes. She said she had never before experienced losing consciousness for such a long time as had occurred on 4 February 2019.

22. In cross-examination, the complainant acknowledged that she had not told police that she had taken GHB recreationally with the applicant the first time they met.

23. She also acknowledged that when she met the applicant at 5am on Monday, 4 February 2019, she had not eaten any food since 5pm on Saturday, 2 February 2019. She had consumed cocaine and stayed awake that Saturday night and into Sunday. She said she had slept during Sunday but could not recall when she did so.

24. Also in cross-examination, the complainant explained that around the time of the offence, she generally used methamphetamine on the weekend, less frequently than cocaine. When she did so, she said she smoked “probably a little bit less than [a] point [0.1g] at a time”, and she agreed with defence counsel that she might ordinarily smoke “half a point” or 0.05g. As to how much she smoked with the applicant on 4 February 2019, she agreed that she had taken a lot of ice, and that she had told the police that she had smoked about a gram of ice with the applicant that morning. She also agreed in cross-examination that a “big amount” of ice might include half a gram.

Claire Williams

25. Ms Claire Williams ran a business which included sub-leasing the apartment in Surry Hills where the applicant and complainant met on the morning of 4 February 2019. She entered the apartment at 3pm to find the complainant in distress. She asked her to leave and go to the police.

26. Later that day, she cleaned the apartment which included removing the bedsheets, which she did not observe to smell strongly of urine.

Plainclothes Senior Constable Brendan Jordan

27. Plainclothes Senior Constable Jordan gave evidence that he and a Detective met the complainant at the Surry Hills Police Station at 3:10pm on 4 February 2019.

28. He said the complainant initially nominated the applicant’s address in Waterloo as the place the assault occurred. He recalled that it was difficult to obtain information from the complainant and that she seemed exhausted and initially unable to focus on questions being asked of her.

29. He contacted detectives from South Sydney Police Area Command and requested they attend the Surry Hills Police Station, which they did shortly after 3:30pm.

Dr Lydia Kovach

30. Dr Lydia Kovach has been practising as a doctor for over 35 years and has been involved in the provision of medical care for sexual assault services since 1998.

31. On 4 February 2019, she examined the complainant between 6:50pm and 9:40pm. She recorded the complainant’s history which was substantively consistent with the complainant’s evidence at trial. She did note, however, that the complainant said the water which the applicant had given her “tasted of GHB”. She also noted that the complainant had reported dysuria or stinging or burning when urinating.

32. As to her examination of the complainant’s genitals, Dr Kovach reported the following:

“The examination of the female genitalia revealed that there was tenderness to touch over the left side of the mons pubis, that there was pain elicited on labial separation and slight traction, but there was an eight to nine millimetre superficial moist read split on the outer surface of the right middle labia of the lips. There was a one centimetre by one centimetre irregularly shaped purple bruise at the left upper hymen extending into the vaginal entrance, and there was a red puncture type mark in the right fossa navicularis. …”

33. Dr Kovach indicated the injuries on a diagram of female genitalia, which became Exhibit B.

34. A vaginal speculum examination revealed a small amount of yellow mucus but no blood. The examination showed no sign of recent injury.

35. Dr Kovach gave her opinion that the various injuries which she observed to the complainant were difficult to age, but that they were likely to have occurred within one to two days of her examination. She said they were caused by blunt force trauma which could have been caused by penetration of the genitals with a firm object such as a penis or digit, or else by a fingernail. She explained that one or other of the injuries could have been the source of the bleeding and also the dysuria which the complainant had experienced.

36. Dr Kovach said that the pain experienced by the complainant, the tenderness of the mons pubis to touch, and the number and variety of genital injuries would imply considerable force during a sexual act or acts. She said that the injuries may also have occurred over several vigorous or clumsy sexual encounters. Dr Kovach concluded that the results of her examination were consistent with, but did not confirm, the complainant’s claim of being drugged and then subjected to intercourse during a period of unconsciousness.

Agreed Facts – Exhibit C

37. The following agreed facts became Exhibit C:

1. that the DNA of the applicant was detected on the swab taken from the low vaginal canal of the complainant on 4 February 2019;

2. that the semen of the applicant was detected on smears taken on 4 February 2019 from the complainant’s vulva, external labia, low and high vaginal canal and perianal area; and

3. that no other person’s DNA was detected on any of the above smears or swabs.

Plainclothes Senior Constable Sarah Engel

38. Plainclothes Senior Constable Engel attended on the complainant at the Surry Hills Police Station at about 3:30pm on 4 February 2019. She described the complainant as being quite scattered, as if she had been up all night and had not slept. She further described the complainant as being slightly dishevelled and quite angry about the assault given her line of work.

39. Plainclothes Senior Constable Engel said that when the complainant was being escorted to her unit to change clothes to allow police to seize the clothes she had been in at the time of the assault, the complainant informed police that the assault had occurred in Surry Hills, not in Waterloo as she had originally informed Plainclothes Senior Constable Jordan.

40. Plainclothes Senior Constable Engel escorted the complainant to the Royal Prince Alfred Hospital and, on the way, the complainant pointed out the house in Waterloo where she had originally met the applicant.

41. In cross-examination, Plainclothes Senior Constable Engel conceded that she did not observe the complainant’s clothing to be wet, nor to smell of urine, though she explained that the complainant had taken off her clothes and placed them into bags and so she had not touched the clothing.

Dr Shuang Fu

42. Dr Shuang Fu gave expert pharmacological evidence. The complainant’s urine was sampled at 7:20pm on 4 February 2019, and her blood was sampled later that day at 8:25pm. The results of the toxicology tests which were conducted included that the complainant had in her system methylamphetamine, cocaine, MDMA, MDA (possibly a metabolite of the MDMA), amphetamine (possibly a metabolite of the methylamphetamine), ketamine, GHB, alprazolam (Xanax) and diazepam (Valium), as well as metabolites of diazepam, namely temazepam, nordiazepam and oxazepam.

43. As to the complainant’s state of consciousness or intoxication between 7am and approximately 3pm on 4 February 2019, Dr Fu opined that the complainant’s toxicology, which was dominated by the presence of GHB and alprazolam, was consistent with the complainant’s account of being unconscious for an extended period of time. She said that the levels of cocaine, methamphetamine and MDMA in her blood and urine were insignificant given her level of tolerance to those drugs. She also said that the complainant would have been slightly to moderately affected by MDMA and methylamphetamine, but not under the influence of cocaine. Dr Fu opined that the sedative effects of the GHB, which would have been the result of a “really, really high” dose, and the alprazolam, which would have been an effective therapeutic dose, would have been more potent than the stimulative effects of the methylamphetamine and MDMA.

44. Dr Fu explained that GHB is normally undetectable after three to six hours, but that it depends on the dose. In this case, given the amount of GHB observed to be in the complainant’s system at the time her urine was sampled, Dr Fu observed that the complainant must have taken a “really large dose”. She further explained that GHB and its subcategories are clear, colourless, oily liquids which are miscible with water and are not visible when mixed in a glass of water, though that depends on the quantity. Dr Fu said that GHB has a particular taste but that the taste is less intense when it is diluted in water.

45. Dr Fu explained that GHB is used as an anaesthetic and hypnotic agent in some countries. She explained that the level of dose drastically changes the user’s experience – 2gms may cause euphoria whereas 6gms would put a person into an anaesthetised state. She also explained that, when taken orally with water, the user would feel the effect within five to 15 minutes and the onset would be between five and 30 minutes, depending on the dose, the user’s tolerance and physical size and whether the user has an empty stomach.

46. Dr Fu outlined the symptoms of GHB overdose as including vomiting, ataxia and a sudden altered state of consciousness. Dr Fu explained that a person who has overdosed on GHB ordinarily experiences memory loss suddenly and completely, something which was consistent with the complainant’s account.

47. Also, Dr Fu noted that some studies had shown that some stimulants such as MDMA, which ordinarily cause a person to be more alert or aware, react with GHB to amplify that drug’s sedative qualities. However, Dr Fu explained that other studies had come to the opposite conclusion and that, therefore, she expected the combination of drugs affected different people differently.

42. Dr Fu gave evidence about alprazolam, the family of drugs it belongs to and its effects. Dr Fu opined that, between 7am and 3pm on 4 February 2019, the complainant’s alprazolam concentration was within the therapeutic range, and that she would have been sedated by alprazolam moderately to significantly depending on her experience with the drug.

43. Dr Fu said that the effects of alprazolam and GHB may be additive. She opined that the complainant’s experience of suddenly lapsing into unconsciousness is attributable to the consumption of GHB and not alprazolam. On the other hand, the complainant’s lengthy eight-hour sleep was consistent with alprazolam and not GHB.

44. Dr Fu explained that 2mg of alprazolam is dissolvable in 153mL of water. She observed that alprazolam is available in various quantities in Australia and that it can be crushed and added to water. In cross-examination on this topic, though, Dr Fu agreed that some excipients which constitute alprazolam are insoluble in water. In re-examination, she clarified that no substance is absolutely soluble and absolutely insoluble – it really depends on the volumes of substance and water being mixed.

45. Finally, in chief, Dr Fu noted that GHB has been known to cause urinary incontinence and that the complainant’s GHB overdose may have contributed to her urinating on herself.

46. In cross-examination, Dr Fu agreed that cocaine and methamphetamine are powerful psychostimulants which can have a combined effect of heightened desire to have sex and a heightened enjoyment in sexual activity. Also, one of the consequences of methamphetamine use is risk-taking behaviour and impaired judgment.

47. In response to Professor Christie’s report, who later gave evidence in the defence case, Dr Fu did not entirely agree that there was an association between methamphetamine use and heterosexual women engaging in high‑risk sexual behaviours, including unprotected sex, and increased libido. Dr Fu criticised the studies which Professor Christie had relied on to form his opinion.

48. Dr Fu confirmed her view that the cocaine would not have affected the complainant between 7am and 3pm on 4 February 2019, but she agreed the complainant may have been suffering withdrawal symptoms. She agreed that diazepam is taken recreationally to reduce the symptoms of cocaine withdrawal and also that alprazolam can reduce the symptoms of hyperexcitation produced by all stimulant drugs, particularly after a long binge. In re-examination, Dr Fu confirmed that the withdrawal effects of cocaine include extreme fatigue.

49. She also agreed that given the complainant took diazepam and alprazolam regularly, her tolerance to those drugs would be increased. In re-examination, Dr Fu explained that a tolerance to diazepam may impact upon one’s tolerance to alprazolam, but it would not be significant.

50. Dr Fu accepted that the toxicology results were consistent with the complainant taking a number of “normal” doses of GHB, between 1.5mL and 2mL, between 6am and 10am or 10:30am. She also accepted that the presence of alprazolam in her system was consistent with the complainant taking an alprazolam tablet at around 10:30am.

51. Dr Fu seemed to accept that GHB may cause memory loss without simultaneously causing loss of consciousness, although she noted she was not aware of any publication which had mentioned that outcome.

52. Dr Fu agreed that stimulants may also cause memory loss, particularly over prolonged use, as a result of the depletion of neurotransmitters. She agreed that the use of stimulants may combine with GHB to result in an even greater impairment of memory.

53. Dr Fu distinguished between two types of amnesia – retrograde and anterograde. She agreed that the onset of anterograde amnesia occurs at the time at which the blood concentration of GHB becomes sufficiently high, meaning that there would be a period of time between ingestion and onset of amnesia.

54. Dr Fu agreed that one of the causes of incontinence can simply be from taking an alprazolam at the end of a long binge on drugs, going into a deep sleep and wetting the bed. Finally, she agreed that, depending on the dose, alprazolam may only result in a sleep time of around four hours.

55. In re-examination, Dr Fu opined that the presence of GHB in a person’s urine 12 hours after they had taken a dose was more readily explicable if the dose had been large. She also noted that if someone does have a tolerance to GHB, that does not mean they will metabolise it more quickly.

56. Dr Fu confirmed that although there is a difference between unconsciousness and memory loss, an unconscious person cannot acquire new memories and therefore cannot lose memories.

57. As to whether the complainant could have been awake but not forming memories between 7am and 3pm, Dr Fu opined that that was “possible in theory” but, based on the evidence, she did not think that that had occurred.

Senior Constable Steven Robalino

64. Senior Constable Steven Robalino was the officer in charge of the investigation and reviewed the CCTV footage which was taken from the address in Surry Hills. An edited version of the CCTV showing the points at which the complainant, applicant and Ms Williams were visible was shown to the trial Court.

65. Senior Constable Robalino confirmed that the complainant was only visible on the CCTV outside the apartment at about 5am, when she arrived with the applicant, and at about 3pm when she left the apartment. In the period during which the complainant was in the apartment, one man was visible in the corridor outside at 10:17am, while the applicant was inside the apartment, and another man was in the corridor at about 10:43am, two minutes after the applicant had left the apartment. The second man was only in that position for five seconds, precluding the possibility that, other than the applicant, he was a possible assailant.

66. In cross-examination, Senior Constable Robalino agreed that the applicant had never been charged with or convicted of an offence of violence, nor sexual or indecent assault. He agreed that the applicant freely agreed to participate in a forensic procedure which was undertaken for the purpose of comparing his DNA with the DNA found on the complainant.

Agreed Facts – Exhibit E

67. Exhibit E in the trial was a series of agreed facts which included that, on 2 February 2019, Lauren O’Brien arranged accommodation for the accused in the apartment at Surry Hills. The arrangement was made with Ms Williams.

68. Ms O’Brien met the applicant on 2 February 2019 and handed him the keys to the apartment. There was not much furniture because no one lived there full‑time.

69. On 3 February 2019, the applicant told Ms O’Brien that $6,000 had been stolen from him.

70. It was also agreed that Ms Williams told Ms O’Brien that the applicant could have the apartment until Monday, 4 February 2019. At 8:35am on 4 February 2019, the applicant texted Ms O’Brien saying that he needed the apartment for one more day and that he would pay her. Ms O’Brien indicated that it was not available that night and offered another apartment in the complex, but the applicant never returned to stay at either apartment within the complex.

Evidence in the Defence Case

Professor MacDonald Christie

71. Professor Christie gave expert pharmacological evidence immediately after Dr Fu, even though the Crown case was not closed until a later point.

72. Professor Christie explained that after 24 hours of continuous use of cocaine and methamphetamine, a person would begin to transition towards a phase of extreme exhaustion in which they may only fall into periods of fitful sleep where the stimulant is keeping them alert. He observed that it is common for people who use psychostimulants for a long period of time to try to calm themselves down with the use of various sedatives. Professor Christie opined that methamphetamine, a stimulant, and GHB, a depressant, both have disinhibiting effects and may affect sexuality but that they may counteract each other.

73. Professor Christie explained that GHB causes anterograde amnesia, particularly at high doses. He went on to say that the complainant’s account was “a bit peculiar” because he would expect a person “to feel the effects of the drug, particularly if [the person] is familiar with the drug…, up to that point where memory is lost”. He also said that it was “a little bit odd that [a person] would completely lose memory within five minutes of taking GHB”. He said he would expect a person to experience and remember euphoria and dizziness, nausea or discomfort before memories stopped being formed. In cross-examination, though, Prof Christie acknowledged it was possible that a person might suddenly lapse into unconsciousness if they consumed a really large amount of GHB, but he maintained his view that an experienced drug user would notice the onset of the effects of the GHB before ceasing to form memory. He accepted that it was possible that methamphetamine intoxication may cause a person not to notice the onset of the effects of GHB.

74. Professor Christie said he wouldn’t be surprised to see memory loss in a person who had binged on methamphetamine over a 24-hour period and then had started to use GHB towards the end of that period, although he noted that there was no scientific literature to support that hypothesis.

75. He disagreed with Dr Fu’s view that a very high dose of GHB must have been taken for it to be detected in the urine 12 hours later. He confirmed that view in cross-examination and said further, with reference to various studies, that the detectability of GHB in a person’s system varies from person to person and that the only certain conclusion which can be drawn from the detection of GHB in a person’s urine is that they had taken it in the previous 12 hours.

76. Professor Christie agreed with defence counsel that the presence of GHB in the complainant’s system at about 7:20pm was consistent with the ingestion of GHB between about 6am and 10am, and that the toxicology was also consistent with her having consumed alprazolam at about 10:30am. But in cross-examination, he agreed that the toxicology results were not inconsistent with the proposition that the complainant consumed a large amount of GHB, as well as alprazolam, and became unconscious for approximately eight hours.

77. Professor Christie disagreed with Dr Fu’s view that alprazolam is soluble in water, citing a number of publications which tend against that view.

78. Professor Christie gave evidence, like Dr Fu, that GHB and MDMA and other stimulants may interact paradoxically to increase the duration of loss of consciousness. One particular study concluded that the average increased duration of loss of consciousness was half an hour.

79. Finally, Professor Christie said that the complainant had a tolerance to benzodiazepines (being alprazolam and diazepam) and GHB. On that basis, assuming the complainant had taken “ten times” as much methamphetamine as she had normally taken between 5am and 7am, Prof Christie opined that the methamphetamine would have stimulated the complainant and made the GHB and alprazolam less effective at inducing sleep, although he couldn’t be certain about it.

80. In cross-examination, Professor Christie agreed the complainant probably had a “decent amount” of methamphetamine in her system around 7am and that at that time she may have been experiencing some of the more adverse effects of methamphetamine such as disorientation, delusions, anxiety, paranoia and psychosis. Those symptoms may cause a person to not notice details such as sediments in sparkling water.

81. Professor Christie agreed the complainant appeared to be a regular methamphetamine user and that methamphetamine users tend to develop high “in-session” tolerance to the drug, which might explain why the complainant was using more than usual at the end of a session and also that she was racing towards the “crash phase of a meth binge”. He noted that a crash involves extreme fatigue. That the complainant had not eaten since 5pm on the Saturday evening prior would contribute to the fatigue. Further, Professor Christie agreed that taking GHB and alprazolam during such a “crash phase” would have a compounding effect and push someone towards sleep.

82. Professor Christie said that if no GHB was detected in a person’s blood, then it was very likely that “at least eight hours had elapsed if a high dose was taken” and also that it was “more likely that six hours had elapsed for a moderate to high dose”.

83. Professor Christie acknowledged that it was hard to say what the complainant’s tolerance to benzodiazepines (alprazolam and diazepam) was. He said the half-life of alprazolam in blood ranges from five hours to 27 hours, and that therefore it was impossible to conclude whether the complainant had taken a low or high dose 12 hours earlier. Based on the toxicology results, he opined that she had taken 1 or 2mg, the latter being a “pretty big dose unless you’re very… tolerant”. He said it was likely “she took a therapeutic dose [of alprazolam] which does induce sleep in non-tolerant individuals”. He said that, although there was no published evidence, he expected that the sedative effects of GHB and alprazolam would add together.

84. Finally, in cross-examination, Professor Christie accepted that there was a low correlation of women engaging in unprotected sex after taking methamphetamine because the study in question examined a “very high-risk population… [who were] having unprotected sex anyway”.

85. In re-examination, Professor Christie said that, if the complainant was experiencing the “crash phase” and associated fitful sleep and the applicant was to have sexual intercourse with her, he would expect her to wake up.

The Applicant

86. The applicant, who was 44 years old when he gave evidence, said he was regularly using methamphetamine, cocaine and GHB around the time of the offence. He used methamphetamine most often, and he described using GHB in the context of engaging in sexual intercourse.

87. The applicant recounted meeting the complainant two weeks before 4 February 2019. His version of those events differed from those of the complainant in that he said that they had met on two occasions, separated by a week, rather than on just one prolonged occasion as recalled by the complainant. The applicant stated that on one of these earlier occasions they had consensual sexual intercourse at which time he did not wear a condom. In cross-examination, he agreed that on these two occasions, he paid the complainant for an hour of her services.

88. The applicant gave evidence about the meeting with the complainant on 4 February 2019. He agreed that he texted the complainant and she told him she would come “after work”. His expectation at this point was that she was coming to take drugs and have sex with him. In cross-examination, he said he thought she was coming “as a friend”. She asked him whether he had methamphetamine or GHB and he replied that he did. She later met him at the apartment in Surry Hills.

89. He said that, when she arrived, they sat on the bed and smoked ice. He said they did that until the sun came up, and that they shared one point (0.1g) per hour.

90. The applicant moved with the complainant to a second bed within the apartment, at which point the complainant asked the applicant about GHB. The applicant and complainant each took 1.5mL of GHB orally using a syringe, after which they drank water to wash it down. The applicant explained that their method of taking the GHB matched the previous occasion they had spent time together and taken drugs. He also explained that it is necessary for a user of GHB to space out their doses of the drug and that although different people take different doses, he had never seen anyone take more than 3mL at a time.

91. The applicant recounted that he and the complainant were then naked on the bed, talking about a range of topics. He said that they waited to feel the effects of the GHB they had taken and then they engaged in consensual sexual intercourse. His evidence was that there was no noticeable change in the complainant’s demeanour at this time and that she was on top of him during the intercourse.

92. The applicant said that he did not wear a condom while having sex with the complainant and that they did not talk about whether he should wear a condom because, as he said, she had come to his apartment as a friend. He said the complainant was awake and consenting to the sexual intercourse.

93. After a brief time, they concluded engaging in sexual intercourse. He said that they then continued to smoke methamphetamine and take GHB. He said the complainant asked him whether she could stay in the apartment for a longer period of time because it was a Monday and “she wasn’t busy, really”. He acknowledged the agreed fact that at 8:35am he had texted Ms O’Brien about staying in the apartment for another day.

94. The applicant recalled taking the bins out around 8:30am, at which time he was visible on the CCTV footage taken from the building. He said that the complainant was still awake at this time.

95. At a later point in the morning, he left the apartment to buy a cold drink, which he said the complainant had requested because it was hot inside the apartment, from a local convenience store. He borrowed and wore the complainant’s hat when he went outside because it was a very hot day. In cross-examination, he denied stealing her hat. He said the complainant was still awake when he returned with the drink, and that he returned her hat to her. In cross‑examination, he said the complainant consumed the drink but that he had about half of it. He acknowledged that he could be seen on CCTV leaving the apartment half an hour later by himself and with the drink in his hand, but he insisted the drink had been bought for the complainant at her request.

96. The applicant denied taking the complainant’s phone at any time during the morning. In cross-examination, he insisted he owned and was using a white iPhone 5, not a Samsung. He denied that the white iPhone which he can be seen using in the CCTV footage was the complainant’s phone.

97. He said that when he told the complainant that someone had stolen money from him, he had said they had stolen “near $6,000”. He denied stealing money from the complainant. In cross-examination, he denied telling the complainant he had no money, and he insisted that he rejected her offer of two $50 notes. He insisted he had his own money despite being robbed of $6,000.

98. The applicant left the apartment at 10:42am, as captured by the CCTV, and did not return. He said that the complainant was still awake at that point and that they spoke before he left. He said he told her that she could remain in the apartment, but that Ms O’Brien had told him to “clean up everything”. He said that when he left the apartment, he closed the door. In cross-examination, the applicant said that the complainant was fully clothed when he left.

99. The applicant said he did not pay for sex on 4 February 2019 and that the complainant did not ask him to pay her. He said the complainant offered to pay him for the drugs she was using but that he refused her offer. He said she did not pay for the drugs she had consumed with him on the earlier occasion.

100. In cross-examination, the applicant was asked about the method for taking GHB and methamphetamine. He was confronted with the proposition that it was not reasonably possible that he and the complainant could have taken methamphetamine and GHB while having sex on 4 February 2019 because, as he said, the sex had lasted only 2 minutes. The applicant dismissed this indicating that he had been referring to the time actually engaging in sexual intercourse.

101. He agreed that if a person took too much GHB, they would pass out. He rejected the proposition that he has ever engaged in risky behaviour after taking methamphetamine and said his judgment was not impaired by the drug.

86. The Crown challenged him on a number of propositions, including in relation to the earlier occasions that he had met the complainant and put its case to him to the extent the complainant’s account differed from his. But the applicant generally maintained his evidence. He denied ever going to the kitchen, pouring a glass of sparkling water, crushing up Xanax and putting that and GHB into the water. He denied giving the water to the complainant without telling her what the water contained, knowing that it would make her unconscious and with the intention of stealing her property and sexually assaulting her. He denied that she fell unconscious and that he had unlubricated sex with her while she was in that state, causing the physical injuries which the complainant had suffered.

87. As to the CCTV, he explained he took the rubbish out “in case” he had to check out that morning. He went on to reject, though, the proposition that he was expecting to check out that morning. He said he left at 10:40am because it was very hot. He said it was “normal” among his friends to leave someone in the position of the complainant alone in the room which he had rented on a short‑term basis.

88. He knew that the complainant charged $500 per hour, but he rejected that he knew she would have at least $1,000 on her when she arrived at his place after spending at least two hours working. He claimed the complainant might not have charged her clients that night.

89. The applicant was cross-examined about his interactions with Ms O’Brien. He agreed he knew he was expected to check out sometime that day but denied knowing he would not be able to because there was an unconscious woman in his bed. He denied insisting to Ms O’Brien that he could pay her for the room because he had suddenly come into a lot of money.

Submissions in this Court

Applicant’s Submissions

106. The applicant filed lengthy written submissions which included a summary of why the evidence did not support the convictions. He submitted:

“.... In summary, this … arises from the following matters:

a)   The complainant did not recall and so could not give evidence as to having been sexually assaulted (or as to the larcenies). Rather, she inferred after the event that this is what had occurred.

[The question raised on the evidence was whether it was reasonably possible that the complainant might have engaged in a number of acts during this period of amnesia, including voluntary drug use and consensual sexual intercourse but simply could not now recall that they had taken place.]

b)   The expert evidence did not exclude the reasonable possibility that the complainant was conscious during the relevant period, but had suffered memory loss, which is why she could not recall the events that were the subject of the charges.

[This could then have led to a genuine but mistaken belief that she had been assaulted.]

c)   It was inherently implausible that the applicant would have drugged the complainant with a substance they had both previously used recreationally together, which she in fact had requested that he provide her, in order to have sexual intercourse with her, in circumstances where the applicant was aware the complainant would likely have consented to such intercourse.

d)   There were other features of unreliability in the case, including the complainant’s attempts to hide that she had requested the relevant drugs from the applicant, the comparison between the complainant’s evidence about her sobriety on waking and the observations made by witnesses about her appearance and demeanour, and the lack of any other objective evidence to corroborate the complainant being in possession of the $6,000 cash when she attended upon the applicant.

e)   The applicant also gave evidence at trial, in which he … recalled what occurred, and he denied the offences, which also left open a reasonable possibility that he was not guilty.”

107. The applicant submits that the Crown case was that the applicant embarked upon a premeditated plan to drug the complainant against her will with the intention of both having non-consensual and unprotected sexual intercourse with her and stealing from her. He says that in those circumstances, if there was a reasonable doubt about whether the complainant consumed the relevant drugs willingly, a doubt about whether she consented to the intercourse, or a doubt as to whether the items were stolen, this would have a “cascading effect” on verdict for all of the counts.

108. The applicant submits that the complainant was an unreliable witness because, on her own account, she had taken a great variety and volume of drugs in the lead up to the events in question, and she was deprived of sleep and food. He noted the expert evidence about the effect those drugs might have, alone and in combination, on the capacity of a person to be an accurate historian and, in addition to those matters extracted in the summary at subparagraph (d), he points to her confused and conflicting evidence as to:

1. whether she had seen one or two clients before meeting the applicant on 4 February 2019, and about which she gave conflicting accounts to Dr Kovach and at the trial; and

2. where the events took place, noting that she initially reported, after walking for only 10 minutes from the apartment in Surry Hills to the Surry Hills Police Station, that the events had taken place in Waterloo, where she had met the applicant originally and where she lived.

109. The applicant submitted that “there was no evidence at all to corroborate the complainant’s version regarding key events, including the theft of the items”. He highlights the “coincidence” that he had $6,000 stolen from him and the complainant’s evidence that that amount was stolen from her by the applicant, which, he submits, given the complainant’s state of intoxication, may in fact be the result of a distorted memory about what she had been told by the applicant about him being robbed of that amount of money. The applicant also complains about the lack of evidence about the circumstances in which the complainant came to bring the items to the apartment and about the subsequent investigations and searches which were undertaken in an attempt to recover the items.

110. In oral submissions, the applicant put that Dr Fu had no knowledge about the effect of GHB on memory formation and was instead only able to give evidence about the drug’s effect on consciousness. The applicant sought to highlight the evidence of Professor Christie, which he said left open the possibility that the complainant was conscious and simply had not formed any memory of the relevant period inside the apartment.

111. The applicant also submitted orally that, properly considered, the evidence of injuries did not support the complainant’s account and that such evidence was equally consistent with the applicant’s account of a very brief period of sexual intercourse with the complainant on top of the applicant, in the context of their drug use, disinhibition and hyper-sexualism. He noted the evidence that the injuries were caused by the application of considerable force, which could have been applied during a sexual act or sexual acts which were themselves individually vigorous or clumsy.

Respondent’s Submissions

112. In response to the applicant’s observation that the expert evidence was not “independent proof” of the offending, the respondent submits that that evidence was nonetheless relevant and significant in understanding the issues in the trial. He submits that when that evidence is properly understood in the context of all of the evidence in the trial, it does exclude the hypothesis that the complainant was conscious and consenting to the intercourse but had no memory of the events due to her drug use.

113. The respondent highlights the expert evidence which was consistent with the complainant taking a high dose of GHB, which in turn was consistent with a sudden loss of consciousness. That evidence also explained that the lengthy period of unconsciousness was attributable to the alprazolam.

114. The respondent also points to the evidence of Professor Christie that, after taking a high dose of GHB, a person may suffer anterograde amnesia and, also, depressed consciousness. It submits that if, as the applicant puts, the complainant took the drug willingly and thereafter merely suffered from anterograde amnesia, that is inconsistent with the applicant’s further proposition that the complainant was alert and consenting to the sexual intercourse which occurred.

115. The respondent submits that the applicant’s complaints regarding the complainant’s evidence are matters relating to her credibility and reliability, which were within the province of the jury to consider and determine. It says this Court must proceed upon the assumption that the complainant’s evidence was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1 at [38]. In coming to that determination, the jury must have taken into account the evidence of the complainant’s drug use and her response to the suggestion that she was impaired in her ability to recall events.

116. Further, the complainant had an accurate and detailed memory of events which were corroborated, such as the location, the clothing the applicant wore, where the applicant’s backpack was stored, the conversations they had and that the applicant showed the complainant a Facebook post with a receipt for the transfer of $2,000 to his daughter in Italy via the Bank of America.

117. As to the applicant’s assertion that the complainant gave conflicting evidence about the number of clients she met before meeting the applicant on 4 February 2019, the respondent says in fact the complainant never accepted that she did give a conflicting account and neither did Dr Kovach give evidence of that other account.

118. The respondent refutes the applicant’s complaint about a lack of corroborating evidence by referring to: the CCTV footage, which corroborated the complainant’s account of the times she came and went and the events which occurred outside the apartment; the expert pharmacological evidence, which corroborated the complainant’s account of suddenly lapsing into an extended period of unconsciousness; and the evidence of Dr Kovach about the complainant’s injuries, which corroborated her experience of pain and her personal observations upon waking.

119. The respondent also relies on the CCTV footage as circumstantial evidence of the underlying offences in that it depicts the applicant wearing the complainant’s hat and using a white Apple iPhone, which were allegedly stolen from the complainant. It also depicts the applicant returning to the apartment with a single drink, which he is seen drinking, which is consistent with the complainant being unconscious and inconsistent with the applicant’s account that he had purchased the drink at her request.

120. The respondent deals with the applicant’s assertion that the Crown case was inherently implausible by emphasising that the case at trial was that the applicant drugged the complainant in order to have unprotected sexual intercourse with her, without paying her, and to steal her money. There was uncontested evidence from the complainant that, on an earlier occasion, the applicant had wanted to have sex without the use of a condom, and that the complainant had refused and had communicated to the applicant that she would not consent to having sex without using a condom. That alleged motive was also consistent with the evidence about the applicant’s lack of money around the time the offences were committed.

121. The respondent says also that the fact the complainant would have voluntarily taken a recreational dose of GHB does not impact upon whether or not the applicant caused her to take the substance unknowingly – especially not at the dose that would produce the required sedation. To the contrary, in oral submissions, the respondent argued that the jury would have been entitled to take into account the earlier occasions on which the complainant had taken recreational doses of GHB and which she did not experience any difficulty remembering. Further, on those earlier occasions, the complainant had maintained her objection to engaging in sexual intercourse without using a condom, even though she had taken GHB, methamphetamine and cocaine.

122. The respondent submits that it was open to the jury to reject the applicant’s account because he was an unimpressive witness and because his evidence was implausible, internally contradictory and inconsistent with the objective evidence. It refers to, among other aspects of his evidence, the applicant’s assertions:

1. that he thought the complainant was attending on his apartment on 4 February 2019 to have sex “as a friend”, despite the fact that he had paid her on the earlier occasions he had met her;

2. that he told the complainant they did not have confirmation that they could stay in the apartment, but that then she decided to take alprazolam to wind down there, rather than returning to her own home nearby; and

3. that he obtained the cold drink for the complainant, despite the CCTV footage showing him drinking it.

123. Finally, in its submissions, the respondent contends that this is a case where the jury had a distinct advantage in seeing and hearing the witnesses give their evidence, especially the applicant and complainant. Critically in this respect, the jury must have accepted the complainant’s account that she had not knowingly taken GHB after arriving at the applicant’s apartment on 4 February 2019. Because the experts agreed that there would not have been any retrograde memory loss, the complainant’s evidence excludes the possibility that she took the GHB voluntarily, which is an essential component of the hypothesis consistent with innocence relied on by the applicant. The respondent points similarly to the evidence about: the last occasion on which the complainant knowingly took alprazolam; the applicant going into the kitchen and preparing a glass of sparkling water; and whether the complainant was injured by the client she met before meeting the applicant. They were all matters involving clear divergences in the accounts given by the applicant and complainant. The jury must have taken into account the witnesses’ honesty, accuracy and reliability in rejecting the applicant’s evidence and accepting the complainant’s evidence.

Discernment

The Conviction Appeal

124. The principles to be applied in considering an appeal of this kind are well-settled and uncontroversial. Section 6(1) of the Criminal Appeal Act 1912 provides that this Court may allow an appeal “if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”.

125. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], French CJ, Gummow and Kiefel JJ summarised the principles in this way:

“[11]   … [T]he relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ:

‘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.’

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen [(2002) 213 CLR 606 at 623-624 [58]] McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as “unreasonable” or such as “cannot be supported, having regard to the evidence”.’

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses [M at 493]. However, the joint judgment in M went on to say [at 494]:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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.’

...

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’ [Morris v The Queen (1987) 163 CLR 454 at 473]. In M, Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493 (footnotes omitted)]:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.’

126. Those principles were recently restated by the High Court in Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7]-[9], [12]-[14].

127. In the circumstances of this case, if the jury accepted the accused’s evidence, or alternatively had difficulty accepting it but thought it might have been true, then they would have been required to acquit him. The parties and trial judge properly recognised that and as such a direction was given to the jury in accordance with the principles set out by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66. It follows from the jury’s verdict that they must have disbelieved the accused’s evidence.

128. As the High Court has made clear on several occasions, including in the passages extracted from SKA above and in the recent case of Dansie, that although an appellate Court ought to defer to the trier of fact in certain circumstances, it remains necessary for this Court to make an independent assessment of the evidence. The applicant submitted, correctly, that this Court ought to first review the applicant’s evidence and, bearing in mind the natural advantage that the jury had, consider whether that evidence causes this Court to have a reasonable doubt about the conviction of the applicant. The respondent did not propose any different approach in the circumstances of this case.

129. I have summarised the evidence of the applicant at [86]-[105] above. The transcript of the applicant’s evidence reveals that, generally speaking, he gave an internally consistent account of his interactions with the complainant. It also reveals that the applicant’s evidence may be considered to have been forthright in the sense that the applicant freely admitted to using illicit drugs regularly and engaging in an alternative lifestyle.

130. As I have noted at [122] above, the respondent drew attention to aspects of the applicant’s evidence which it described as “implausible, internally contradictory and inconsistent with the objective evidence”. I agree with the submission that the applicant’s account was, in some respects, implausible. In particular, I consider it implausible that:

1. the complainant, a sex worker, would require the applicant, someone she had met in her professional capacity, to wear a condom on some but not all occasions that they engaged in sexual intercourse, notwithstanding the evidence about taking risks after ingesting drugs such as methamphetamine;

2. despite not having confirmation that she could stay in the apartment for the remainder of the day on 4 February 2019, the complainant would choose to take alprazolam, knowing it would cause her to sleep for an extended period of time, rather than returning to her own home which was a short distance away in Waterloo; and

1. the applicant would, at the complainant’s request, leave what was undoubtedly a hot apartment to purchase one cold drink for her, but then drink that one drink himself.

131. I also consider it implausible that, in light of the expert pharmacological evidence discussed below and the complainant’s evidence that she was not injured before meeting the applicant, the complainant, who on the applicant’s version had taken recreational doses of GHB but was “totally fine”, would engage in brief, consensual, unprotected sex with her on top of the applicant, and as a result suffer the injuries which were observed by Dr Kovach.

132. For completeness, I reject the particular submission made by the respondent that it was inherently implausible that the applicant thought the complainant was attending his premises “as a friend”. I note that the applicant referred to another sex worker as his “friend” and explained that they were “not friends… but sort of – we – we was good company for each other”. This and other aspects of the applicant’s evidence may simply by explained by the applicant’s irregular use of English, which is not his native language.

133. I consider also that the applicant’s honesty about using illicit drugs does not necessarily make him a trustworthy, or credible, witness. Whilst he was not on trial for such conduct, his credibility as a witness could be adversely affected by the implausibility, in some respects, of his evidence about his conduct in using drugs. For example, he said that his judgment was never impaired after taking methamphetamine, something which was categorically refuted by the expert evidence in the trial.

134. Although I tend to disbelieve many parts of the applicant’s evidence, including those described at [130] above, in my position as a Judge of this Court, notwithstanding my careful consideration of the whole of the transcript of the applicant’s evidence, I am unable to come to a final view about whether the applicant’s evidence should be disregarded as not being credible, or whether it should be considered as a reasonably possible version of the facts, matters and circumstances in question.

135. However, it is also important to note that the transcript is clearly deficient in recording many aspects of the applicant’s evidence. He is not a native English speaker and some parts of his evidence were given through a Farsi interpreter. There were clearly moments where the applicant did not understand counsel’s question or gave an obviously confusing response. On many of those occasions, counsel attempted to clarify the applicant’s evidence, sometimes with the assistance of the interpreter. But there may be other occasions, unknowable simply from a review of the transcript, where the applicant did not fully understand the question he was being asked or the answer he was giving, including all of its implications to a native English reader of a transcript of the words he spoke. For those reasons, audio-visual aspects of the applicant’s evidence which were available to the jury, but not to the judges of this Court, must have been especially important, including his body language, the cadence and tone of voice, the pauses between question and answer, and the pace of his response.

136. As I have said, this Court ought to defer to the jury on findings of fact in particular circumstances. The foremost reason for that rule, as articulated by the High Court, is because the jury has “the advantage of having seen and heard the evidence”: Dansie at [9] citing M v The Queen (1994) 181 CLR 487 at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ, with whom Gaudron J agreed at 508); [1994] HCA 63. In M at 502, Brennan J referred to Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, in which Dawson J ascribed the advantage to the fact that “the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal” and recognised that “[a] jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot”. McHugh J, although in dissent in M, also recognised that the jury enjoyed an advantage over the appellate court on account of “the atmosphere of the trial”: at 525.

137. The significance of the advantage which is enjoyed by the trial court “will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”: Dansie at [17]. In Dansie, the High Court considered that because “the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must [have been] slight”.

138. In addition to those practical matters, the High Court has recognised that “the court must not disregard or discount … the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence”: M at 493. Also in M at 502, Brennan J acknowledged that “the primary responsibility for finding the facts rests with the jury, not the appellate court” and quoted a statement by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 443; [1991] HCA 4 in which the Chief Justice recognised the “constitutional responsibility of the jury to decide upon the verdict”.

139. In R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court wrote at [65] that “[i]t is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’ [citing Hocking v Bell (1945) 71 CLR 430 at 440; [1945] HCA 16 and other cases]”. And in Pell at [38], the High Court said that “[t]he assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury”, and also that there is a “functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court [which] has not been superseded by the improvements in technology that have made the video-recording of witnesses possible”.

140. This Court did not receive any such video-recording. Nor is there any other reason relating to the form in which the evidence was adduced which would diminish the advantage enjoyed by the jury in this case.

141. In my view, for the reasons which I gave at [135] above, the jury in the circumstances of this case was uniquely placed to assess the evidence of the applicant and come to a view about whether it should be accepted as the truth or as an account which might be true. In my view, it was open for the jury to reject the applicant’s evidence, including because his evidence was at times inherently implausible and in conflict with other evidence.

142. As I have explained, the jury must have rejected the applicant’s evidence. In the circumstances of this case, I would resolve the initial doubt experienced by me about whether the applicant’s evidence should be accepted by deferring to the jury, rejecting the evidence and putting it to one side. It therefore becomes necessary to consider the remainder of the evidence which the Crown relied upon to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

143. I have summarised the complainant’s evidence at [10]-[24] above. Although it is not my role to determine whether the applicant’s evidence should be preferred over the complainant’s, I do remark by way of comparison that the two witnesses were similarly forthright and frank about their use of illicit drugs.

144. The complainant gave evidence about the drugs which she had taken, and the limited sleep and food which she had benefited from, on the days preceding the events in question. I accept the respondent’s submission that the pharmacological evidence supports a view that those matters may have affected her ability to recall events accurately. However, her evidence was unwavering and consistent, including with respect to the limits of her memory. Her evidence was broadly consistent with her immediate complaints to Ms Williams, police officers at the Surry Hills Police Station and the medical staff who examined her. In my view, that she initially confused the location of the assault and that police officers perceived her to be scattered may be entirely explained by her experiences over the previous few days, including being drugged and sexually assaulted by the applicant.

145. I reject the submission that the complainant’s credibility was necessarily diminished because she may have told Dr Kovach that she had two clients on the night of 3 February 2019, before meeting the applicant. The complainant did not accept that she had told Dr Kovach that version of events, and Dr Kovach gave no evidence about how many clients the complainant had met before arriving at the apartment. Further, the transcript of this exchange between counsel and the complainant does not cause me to have any doubt about the complainant’s evidence generally.

146. I have also considered the complainant’s omission to tell the police that she had used GHB with the applicant on an earlier occasion and that she had asked the applicant whether he had any GHB on 4 February 2019. She conceded in cross-examination that she should have told police about these matters and that she did not do so because she was “definitely worried about how it would make [her] look for sure” in the sense that it may have been considered by the police to be an implausible suggestion that she had been drugged by the very substance she had requested. But, in my view, that the complainant made that and other concessions strengthens the opinion I formed from a review of the transcript of the complainant’s evidence that she was a credible witness who gave a consistent and plausible account at trial.

147. I would reject the submission that it was inherently implausible that the applicant would have drugged the complainant with a substance they had both previously used recreationally together, which she had requested that he provide her. It was open to draw the inference that the applicant had so drugged the complainant from the complainant’s evidence and from the expert evidence, addressed below, including because the applicant possessed GHB on the night of 4 February 2019 and knew that a high dose of it would cause someone to lose consciousness. That the applicant might want to drug and rape the applicant, without using a condom, was also consistent with the evidence that the complainant had refused to engage in sexual intercourse with him without the use of a condom, and the agreed fact that the applicant had told Ms O’Brien on 3 February 2019 that he had been robbed of a significant amount of money.

148. I would reject the applicant’s submission that the complainant had incorrectly “inferred” that she had been sexually assaulted after waking up in the apartment. Clearly, she did so infer and as a result she followed Ms Williams’ advice and went immediately to the police to make a complaint. But the fact that she made such an inference was itself irrelevant in the trial, and accordingly she was not asked any questions about it. The fact that she could not give direct evidence of the assault is no bar to prosecution, and in the circumstances of this case is the ordinary consequence of the act which constituted Count 1 on the Indictment.

149. In its submissions, the respondent acknowledged that although the Crown case was a circumstantial one, it depended upon the jury accepting the direct evidence of the complainant with respect to the following matters:

1. that, after arriving at the applicant’s Surry Hills apartment on 4 February 2019, the complainant did not knowingly take GHB, including any recreational dose;

2. that the complainant did not knowingly take alprazolam on or around 3‑4 February 2019;

3. that, while they were at the apartment in Surry Hills, the applicant went to the kitchen and prepared the complainant a glass of sparkling water and brought it to her to drink;

4. that the complainant did not have any pain or soreness to her vagina at the time she met the applicant on 4 February 2019; and

5. that, on the earlier occasion on which the applicant had engaged the complainant’s services, the applicant had requested to have sexual intercourse without a condom, and the complainant had explicitly refused that request and told him that a condom was a requirement.

150. In my view, it was also necessary for the jury to have accepted the complainant’s account that she had brought $6,000 of cash and a white Apple iPhone with her to the apartment.

151. Each of those matters are facts that were uniquely within the knowledge of the complainant. No other person could have given any evidence about the contents of the complainant’s bag when she entered the apartment. But it was clearly open to find that she had a mobile phone, including because she had texted the applicant earlier on the morning of 4 February 2019, and also that she had at least some method of paying the driver who took her to the applicant’s apartment. In my view, it was also open to the jury to accept the complainant’s evidence about each other matter noted above.

152. For those reasons, to come to the verdict which it did, the jury must have assessed the complainant’s evidence to be credible and reliable. I have found no reason to doubt that assessment, including because the other available evidence was either corroborative or consistent with the complainant’s evidence. Nor have I found any reason, based on the complainant’s evidence, which would lead me to have a doubt about the guilt of the applicant.

153. Furthermore, I agree with the respondent’s submission that the applicant’s complaints about the complainant’s evidence are essentially matters dealing with her general credibility and reliability. In accordance with the principles regarding the benefits enjoyed by the jury outlined above, and in circumstances where the transcript does not reveal any issue of the type I have discussed above, I would hesitate to conclude that any miscarriage of justice had occurred.

154. I have reviewed the CCTV footage. It corroborates the complainant’s account in many respects, including the times she arrived and left the apartment. It also confirms that the applicant collected a black backpack from a concealed location before going upstairs to the apartment with the complainant.

155. The CCTV footage is also consistent with the complainant being unconscious inside the apartment during the morning of 4 February 2019. The applicant can be seen coming and going from the apartment without the complainant. At around 9am the applicant left the apartment and returned a few minutes later with a single drink, which he can be seen drinking. Given there was no dispute that it was a hot day and that the apartment was small, in my view, that evidence supports of an inference that the complainant was unconscious and therefore could not drink anything and would not benefit from receiving a drink. And although the applicant was never charged with an offence relating to the theft of the complainant’s hat, the CCTV shows the applicant wearing the hat during the morning and may support an inference that the applicant felt entitled to take the complainant’s belongings.

156. In connection with the CCTV, I note that the evidence of Senior Constable Robalino precludes as a reasonable hypothesis that someone other than the applicant entered the apartment and took the complainant’s property or assaulted her.

157. However, there is one aspect of the CCTV footage which does not corroborate the complainant’s account. Her evidence is that she had seen the applicant use a white iPhone on the earlier occasion she had met him, but that on 4 February 2019 he was using a black Samsung. The CCTV shows the applicant using a white iPhone when the complainant arrived at his apartment – before he is suggested to have stolen the complainant’s. That does not mean that the applicant did not also have a black Samsung which he used inside the apartment, but it does mean that another rational inference to be drawn from the later CCTV footage, in addition to the inference that the applicant is using the complainant’s phone, is that the applicant is simply using his own white iPhone.

158. The evidence of Ms Williams and the police officers is broadly consistent with the complainant’s evidence. It supports inferences which lead to a finding that the applicant is guilty of the offences charged, and none of it causes me to doubt the reliability of the complainant’s evidence. But this evidence also does not preclude reasonable hypotheses consistent with innocence.

159. I have summarised Dr Kovach’s evidence at [30]-[36] above which, as observed by Dr Kovach, is consistent with the complainant’s account of events and also an inference that the complainant had been drugged and raped by the applicant. The reason for that conclusion is that the genital injuries which Dr Kovach observed were the result of several vigorous or clumsy sexual encounters, which may have occurred because the complainant was unconscious at the time.

160. The agreed facts that the applicant’s DNA and semen was detected on swabs taken from the complainant, and in light of the complainant’s evidence that she had refused to engage in unprotected sexual intercourse with the applicant, support the inference that the applicant had drugged and raped the complainant.

161. It is therefore necessary to carefully review the expert pharmacological evidence which was called at trial. I have summarised the evidence of Dr Fu and Professor Christie, at [42]-[63] and [71]-[85] above, respectively.

162. As is clear from those summaries, the evidence supports the conclusion that the complainant took significant doses of GHB and alprazolam, among other drugs, on 4 February 2019, and was unconscious for several hours that day. No part of the pharmacological evidence causes me to have a doubt about the reliability of the complainant’s account, except to the extent that I have already discussed it.

163. The applicant’s primary contention with respect to the expert evidence is that it did not exclude the reasonable possibility that the complainant was conscious during the relevant period but had suffered memory loss, which is why she could not recall consenting to unprotected sexual intercourse with the applicant. To support this contention, the applicant argues that Dr Fu gave no evidence about whether GHB could cause a person to cease forming memories without simultaneously causing them to lose consciousness, whereas Professor Christie gave effectively uncontested evidence that that could occur.

164. I have carefully reviewed the material. Both experts were unanimous in many respects, and critically, in that they said that GHB may cause anterograde, not retrograde, memory loss at high doses. Dr Fu explained that after a dose is ingested, it would take five to 15 minutes before the user felt the effects of the drug. The experts further agreed that the onset of anterograde amnesia occurs at the time at which the blood concentration of GHB becomes sufficiently high, meaning that there would be a period of time between ingestion and the onset of amnesia during which the person’s memories would be undisturbed.

165. Dr Fu described the memory loss which may be caused by a GHB overdose as sudden and complete and Professor Christie acknowledged that it was possible that a person might suddenly lapse into unconsciousness if they consumed a really large amount of GHB.

166. Professor Christie firmly held to his opinion that a user of GHB would feel and remember the onset of the drug including symptoms such as euphoria, dizziness, nausea or discomfort, before the onset of anterograde amnesia. But he also accepted that methamphetamine intoxication may cause a person not to notice the onset of those effects.

150. In other words, a person who is administered a dose of GHB which causes them to suffer amnesia will remember the taking of that dose. They may also remember the onset of the effects of GHB. But, critically, if the applicant’s proposed hypothesis which is said to be consistent with innocence is true, the complainant would have remembered taking at least her first recreational dose of GHB and probably her second, using a syringe as the applicant says she did and as she had previously done so with the applicant.

151. The complainant’s evidence is that she does not remember knowingly taking any GHB on the morning of 4 February 2019. In light of that evidence, which as I have said was open to the jury to accept, the pharmacological evidence does not support the applicant’s contentions.

152. I reject the applicant’s submission that Dr Fu gave no evidence or had no knowledge of matters which would enable her to give evidence, when dealing with the possibility that the complainant had remained conscious but simply had stopped forming memories as a result of taking GHB. The effect of her evidence, as I read the transcript, is as summarised at [57] and [63] above, namely that it was “possible in theory” but, based on the evidence, she did not think that that had occurred.

153. For all of those reasons, in my view, it was open to the jury, on the basis of the evidence, to reject as a reasonable possibility that the complainant might have engaged in consensual intercourse with the applicant on the morning of 4 February 2019, while she was conscious but not forming memory. It was also open to the jury to be satisfied of each other matter constituting the Crown case against the applicant and to therefore conclude that the applicant was guilty of the offences charged.

154. I am not satisfied that the verdicts are unreasonable or that they are not supported by the evidence. No miscarriage of justice has occurred. The appeal ought to be dismissed.

Extension of Time

172. The applicant seeks leave to file his appeal approximately four weeks out of time. He explains that he was delayed by the need for further investigation and review by his representatives, and that the fault for any delay is not attributable to him.

173. He further submits that the merit of his appeal and the significance of issues raised by the ground of appeal, coupled with the short period of time that had elapsed since the expiration of the Notice of Intention to Appeal, warrant a grant of leave.

174. The Crown did not object to leave being granted and as such I would grant leave.

Orders

175. I propose the following orders:

1. Leave to appeal be granted;

2. The appeal be dismissed.

176. ADAMSON J: I agree with the orders proposed by Garling J, substantially for the reasons given by his Honour. I have reviewed the evidence and am satisfied that it was reasonably open to the jury to convict the applicant of Counts 1, 2, 3 and 4.

177. N ADAMS J: I have had the considerable advantage of reading the judgment of Garling J in draft. Having regard to the whole of the evidence before the jury, I too am not satisfied that the verdicts are unreasonable for the reasons provided by his Honour.

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Amendments

09 December 2022 - Incorrect spelling of counsel's name on coversheet.

Decision last updated: 09 December 2022