Kazantzis v The Queen

[2020] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kazantzis v R [2020] NSWCCA 161

Hearing dates:

18 June 2020

Date of orders:

16 July 2020

Decision date:

16 July 2020

Before:

Bell P at [1]; Davies J at [75]; Wilson J at [79]

Decision:

1.   Grant leave to appeal.

2.   Dismiss the appeal.

Catchwords:

CRIME – Appeals – appeal against conviction – sexual assault offences – applicant convicted of one count and acquitted of two counts – whether jury verdict was unreasonable or unsupportable having regard to the evidence – open to the jury to be satisfied of guilt beyond reasonable doubt.

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5(1)(b)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Hamilton (a pseudonym) v R [2020] NSWCCA 80

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

Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35

Pell v R (2020) 94 ALJR 394; [2020] HCA 12

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

RC v R; R v RC [2020] NSWCCA 76

Category:

Principal judgment

Parties:

Michael Kazantzis (Applicant)
The Crown (Respondent)

Representation:

Counsel:
E Ozen SC (Applicant)
F Veltro (Respondent)

Solicitors:
Benjamin Leonardo - The Defenders (Applicant)
Office of the Director of Public Prosecutions NSW (Respondent)

File Number(s):

2016/00163869

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 December 2018

Before:

North DCJ

File Number(s):

2016/00163869

Headnote

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

Mr Michael Kazantzis (the applicant) was charged with three counts of sexual intercourse without consent relating to three separate occasions in early 2016. In respect of each count, the intercourse was with the same woman (the complainant) with whom the applicant had commenced a relationship in or around mid-January 2016.

The applicant, who was aged 21 at all material times, and the complainant, who was aged 19, had met through the dating app “Tinder”, and their relationship was mutually torrid and aggressively sexual with both the applicant and complainant engaging in consensual penile-vaginal and anal sex in public locations, in bondage, threesomes, and filming and posting videos and still shots of sex acts including themselves on various social media platforms.

The second offence, of which the applicant was found guilty, was alleged to have occurred on 18 February 2016 in the carpark of Westfield Burwood. The complainant gave evidence that she was in the backseat of the applicant’s car, and that she and the applicant engaged in penile-vaginal intercourse for about three to five minutes. The complainant gave evidence that the applicant then inserted his penis into her anus and proceeded to penetrate her very quickly. The complainant initially consented to the applicant penetrating her anus, and it was only when she started feeling a sharp pain in her abdomen and around her anus, some 30 seconds to a minute after he penetrated her, that she told him to stop. The complainant explained that after telling the applicant to stop, she used her hand to push his chest to try and get him off her, but she had very limited movement because of her position in the car. The applicant removed his penis for a short period of time, and then re-inserted it again a few seconds later, without asking.

After the applicant re-inserted his penis, the complainant in her police statement said words to the effect of “please babe stop it’s really uncomfortable”, to which the applicant responded, “don’t you want me to cum?” The complainant said “yes I do but it’s hurting me and uncomfortable”. In her examination in chief, she added that, after this statement, she again said “please stop”. The complainant said that at that point, it felt like it did not matter what she said or did, as nothing was going to stop the applicant, and so she gave up trying and closed her eyes and looked at the ceiling of the car and waited for him to stop.

The principal issue on appeal was whether the jury’s verdict on count 2 was unreasonable or unsupportable having regard to the evidence.

The Court (Bell P, Davies and Wilson JJ agreeing), granted leave to appeal but dismissed the appeal, holding:

1. The jury’s verdict on count 2 was not unreasonable, and the applicant failed to establish that the verdict should be overturned. Based on the evidence, including the complainant’s statement to police, numerous social media exchanges, a taped telephone conversation between the applicant and the complainant, and a transcript of the electronically recorded police interview of the applicant, it was well open to the jury to conclude that the applicant was, at the time of the encounter, aware that the complainant wished him to stop penetrating her and had withdrawn her consent, but that he continued nonetheless: [62]-[73] (Bell P); [75] (Davies J); [79]-[80] (Wilson J).

Judgment

1. BELL P: The applicant was charged with three counts of sexual intercourse without consent relating to three separate occasions in early 2016. In respect of each count, the intercourse was with the same woman (the complainant) with whom the applicant had commenced a relationship in or around mid-January 2016.

2. The applicant, who was aged 21 at all material times, and the complainant, who was aged 19, had met through the dating app “Tinder”, and their relationship was mutually torrid and aggressively sexual with both the applicant and complainant engaging in consensual penile-vaginal and anal sex in public locations, in bondage, threesomes and filming and posting videos and still shots of sexual acts including themselves on various social media platforms.

3. The first offence was alleged to have occurred some time between 1 and 17 February 2016 in the carpark of Westfield Burwood. The complainant and the applicant began engaging in consensual penile-vaginal intercourse. The applicant then proceeded to bring out a pink egg-shaped sex toy, to which the complainant initially consented to using, but felt “very uncomfortable” after it was inserted into her anus. The complainant gave evidence that she communicated to the applicant to not “push it any further” and to “[t]ake it out”, but that he “completely disregarded [her] wishes”. The complainant outlined that the accused got off her in the backseat of the car, after the pink object was fully inside her anus. Following this, the complainant went into a food-court bathroom but was unable to remove the object from her anus, and had to wait for a bowel movement to do so. There was no further sexual activity between the applicant and complainant that day, and the applicant drove the complainant to a nearby train station and she went home.

4. The second offence was alleged to have occurred on 18 February 2016, again in the carpark of Westfield Burwood. The complainant gave evidence that she was in the backseat of the applicant’s car, and that she and the applicant engaged in penile-vaginal intercourse for about three to five minutes. The complainant gave evidence that the applicant then inserted his penis into her anus and proceeded to penetrate her very quickly. The complainant initially consented to the applicant penetrating her anus, and it was only when she started feeling a sharp pain in her abdomen and around her anus, some 30 seconds to a minute after he penetrated her, that she told him to stop. The complainant explained that after telling the applicant to stop, she used her hand to push his chest to try and get him off her, but she had very limited movement because of her position in the car. The applicant removed his penis for a short period of time, and then re-inserted it again a few seconds later, without asking.

5. After the applicant re-inserted his penis, the complainant in her police statement said words to the effect of “please babe stop it’s really uncomfortable”, to which the applicant responded, “don’t you want me to cum?” The complainant said “yes I do but it’s hurting me and uncomfortable”. In her examination in chief, she added that, after this statement, she again said “please stop”. The complainant said that at that point, it felt like it did not matter what she said or did, as nothing was going to stop the applicant, and so she gave up trying and closed her eyes and looked at the ceiling of the car and waited for him to stop. Following this incident, on the complainant’s evidence, the applicant and the complainant did not participate in any other sexual acts on that day.

6. The third offence was alleged to have occurred on 12 March 2016, at a birthday party that the applicant had organised for his cousin in Sydney. The applicant would be supplying the alcohol and arranged for two adjoining rooms at a Sydney hotel to be booked. The applicant told the complainant that it would be a good opportunity to try and co-ordinate a threesome, to which the complainant outlined she was a “bit reluctant”. In the weeks leading up to the party, the applicant introduced the complainant to a third party, Emma, through a group conversation on Facebook Messenger.

7. The complainant attended the party with Emma, and gave evidence that she drank a large quantity of alcohol at the party, and was quite intoxicated. At one point during the night, the applicant and Emma got into a heated argument, and Emma left the party soon after that. The complainant recalled complaining to people at the party about the applicant, and in particular his obsession with threesomes. At one point during the night, the complainant recalled being in the bedroom and being penetrated by the applicant from behind. She did not recall how she came to be in the bedroom, but remembers being “pretty much blackout drunk”. The complainant indicated that at this point in time, she would have had between 10 to 15 shots of alcohol.

8. The applicant pleaded not guilty on all counts.

9. After a trial of some 11 days, on 12 December 2018 the applicant was found not guilty on counts 1 and 3, but guilty on count 2. He was sentenced in respect of count 2 to a non-parole period of 12 months’ imprisonment to date from 15 March 2019, with a parole period of 12 months’ imprisonment which will expire on 14 March 2021.

10. The applicant appeals on a single ground, namely that the jury’s verdict was unreasonable or unsupportable having regard to the evidence. He does not appeal on the ground of inconsistent verdicts (cf. Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35) although senior counsel for the applicant, Mr Ozen, did place reliance on his acquittal by the jury, especially in relation to count 1, on the basis, he submitted, that that acquittal bore upon the jury’s assessment of the complainant’s credibility. To that extent, the allegations especially in relation to count 1 have a continuing relevance for the purposes of the present appeal.

11. As this is an appeal which involves a question of fact, the applicant recognises that leave is required to prosecute the appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave to appeal should be granted.

Applicable legal principles

12. In an appeal of this nature, providing leave is granted, this Court is required to carry out its own assessment of the evidence to determine whether it was open to the jury to find count 2 was established beyond reasonable doubt: M v R (1994) 181 CLR 487 at 493-5; [1994] HCA 63 (M v R).

13. In Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [66]-[68], Macfarlan JA, with whom Adamson and Beech-Jones JJ agreed, surveyed the relevant principles to be applied on a challenge to a jury’s verdict as unreasonable as follows:

“This Ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by this Court is ‘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’ (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). As stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]), ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’. In Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

This Court must make its own independent assessment of the evidence. It must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494):

‘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 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, as in the present case, the jury’s assessment of the principal witnesses was ‘vital’ (at [23]). Notwithstanding imperfections in the evidence, including deficiencies in recollection and inconsistencies in the evidence, the Court in MFA dismissed the unreasonable verdict ground of appeal noting:

‘There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention’ (at [96]).”

14. Another valuable summary of the principles is contained in the recent decision of Wilson J (with whom R A Hulme and Hamill JJ agreed) in RC v R; R v RC [2020] NSWCCA 76 at [123]-[147]. At [143], her Honour said:

“In assessing the appellant’s arguments in that regard it is not for this Court to supplant the jury’s verdict with its own. The question is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant’s guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13 at [405] – [406]. In Pell v The Queen [2020] HCA 12, the High Court said, 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’. [Footnotes omitted]”.

15. In answering the question whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v R at 494-495; Pell v R (2020) 94 ALJR 394; [2020] HCA 12 at [37].

The events of 18 February 2016

16. There was no issue that the applicant and the complainant drove to the Westfield Burwood carpark at approximately 10.46am on 18 February 2016 and commenced to have consensual sex in the back seat of the applicant’s car.

17. It was not ultimately in contest at the trial or on appeal that, in the course of that sexual encounter, after the couple had moved from having vaginal sex to anal sex, the complainant in fact withdrew her consent. Rather, the critical issue was whether or not the applicant had knowledge of this or was recklessly indifferent to this fact.

18. On this issue, senior counsel then appearing for the applicant had ultimately submitted to the jury (subject to my bold interpolations for context in square brackets) that:

“In terms of what really happened, was it his going ahead in the face of her withdrawal of consent? Did she make it clear to him, in the context of a relationship where pain and discomfort were a part of it, did she make it clear to him that she wanted him to stop? Just throw out the window the addition she's put into her statement, go back to exhibit 7, defence exhibit 7, and look what she claimed the conversation was then.

Look at other things that happened. This happened on 18 February, on 19 February, she's filling in a survey, rating anal sex nine out of ten [see [36] below]. On 20 February, they're going to a wedding, followed up by a session of bondage. For goodness sake, members of the jury, why is she still in this relationship? It's not a situation like a woman who lives with an abusive husband, tied to him by a mortgage and kids. She could walk away from this at any time, and she stays. What that tells you very loudly and clearly is that there is no truth. There is no truth beyond the fact that there was an incident involving a pink object [a reference to the first offence charged]. There is no truth in the spun version that she's put before you, because she wouldn't have stayed with him. She wouldn't have put up with it, she wouldn't have tried to get over it. She has painted you a picture which is totally false. She has picked incidents, and there was an incident, the pink object, and she's put a totally sinister spin on it, when it just doesn't fit with anything else that's going on. Doesn't fit with the continuation of the relationship, and she didn't tell the police about it. Of course she claims she didn't know it was sexual, goodness me. [A further reference to the first offence charged].

Members of the jury, let me not be heard to suggest sexual assault is anything other than an abomination. It is an awful, awful offence. But convicting someone of it if they didn't do it is at least equally an abomination. Satisfied beyond reasonable doubt that she's truthful and reliable in any respect? Members of the jury, you have promised us, you solemnly promised us in whatever form you promised it, that you would give us a true verdict according to the evidence. Members of the jury, in our submission, if you look at this evidence, and you look at who you're asked to rely on, and you look at the standard of truth that you're required to be satisfied, you could not in conscience say that you were satisfied beyond reasonable doubt of anything.”

19. It is necessary to review all of the evidence bearing upon the second count to make an assessment as to whether or not the jury’s verdict was unreasonable within the meaning of the authorities referred to at [12]-[15] above, paying full regard to the fact that the jury had the benefit of having seen and heard the complainant.

1. Complainant’s statement to police

20. The complainant addressed the circumstances of her withdrawal of consent in a statement to the police, the relevant extract of which became Exhibit 7 in the trial. Her account in this statement, dated 23 May 2016, was as follows:

“17.   At this time Michael and I engaged in penile/vaginal intercourse. I was positioned on my back laying the length of the rear seat and Michael was holding my legs in the air pointing towards the roof of the car. After about five minutes Michael removed his penis from my vagina and inserted it into my anus. We continued having penile/anal intercourse for approximately one minute. I became uncomfortable as it was hurting my anus and abdomen. At this point I told Michael to stop. I said ‘Stop babe it's uncomfortable’. I used my left hand to push the chest area of Michael. I tried to push him away from me in an attempt to get him to stop.

18.   Michael stopped moving and removed his penis from my anus. After about five seconds Michael re inserted his penis into my anus and continued to penetrate me. I still felt pain and it was uncomfortable. I said words to the effect of ‘please babe stop it's really uncomfortable’. Michael said to me ‘don't you want me to cum’. I said ‘yes I do but it's hurting me and uncomfortable’. Michael continued penetrating my anus with his penis for several minutes after this at which point I closed my eyes and took it, waiting for it to be over. This caused me to feel empty and powerless.

19.   Michael stopped and removed his penis from my anus. Michael didn't ejaculate. Michael put his clothes back on. I felt zoned out and put my clothes back on. I felt pretty numb. I felt I was in a position in the relationship that I could not express my concerns.”

1. Social media exchanges

21. Other evidence deriving from the complainant in relation to the events of 18 February 2016 took the form of Facebook Messenger messages with a woman named Katrina, who was evidently known both to the complainant and the applicant. Indeed, the extract of Facebook Messenger conversations that were in evidence at the trial disclosed that, at least in March 2016, Katrina was not only communicating directly with the complainant, but was also communicating the complainant’s complaints to the applicant, and showing the complainant screenshots of the applicant’s responses. As such, Katrina acted as something of an intermediary between the applicant and the complainant in March 2016.

22. A social media dialogue between the complainant and Katrina on 5 March 2016 discloses that the applicant wanted to invite Katrina to the party on 12 March 2016 at which the third offence (see [6]-[7] above) was alleged to have occurred. She did not attend. The complainant messaged Katrina the following morning, 13 March 2016, at 3.46am, saying:

“Lol dw we broke up the fuckingasshole is fucked in the head”.

23. On 14 March 2016, the complainant sent Katrina a screenshot of a post apparently lodged by the applicant on the social media platform, Tumblr, announcing that he was single and stating:

“I'm not a perfect person. These past few weeks I've made so many stupid mistakes that I wish I could take back. I’ve hurt the girl I cared so much about.”

24. On 22 March 2016, at 12.05am, Katrina sent the complainant screenshots of a dialogue she had had with the applicant in which they talked about another young woman he had met on Tinder. In this dialogue, he asked Katrina not to tell the complainant that he was seeing other girls. Katrina did not follow that request, and later in the Facebook Messenger string on 22 March 2016, the complainant said to Katrina:

“not gonna lie though girl, i'm hurting now that i know he’s seeing other girls only a week after we broke up”.

25. Later in this dialogue between Katrina and the complainant, the latter said, referring to the matter which became the subject of the third offence (see [6] – [7] above):

“fk man I havent really told many people this

but like I feel like he took advantage of him [sic] the night we broke up

i was so blackout drunk i couldn’t remember having sex with him the second or third time which i told happened by witnesses at the party

and i woke up with a massive bruise around my arm where it looked like someone had grabbed me hard, and a really big one on my hipbone

like i could press charges and accuse him of rape and shit for that”.

26. On 22 March 2016 from approximately 7.09pm onwards, the following conversation took place via Facebook Messenger:

“Complainant:   hey did you by any chance tell michael about me thinking he raped me?

Katrina:             Woah what

Complainant:    did you not read what i messaged you last night??

anyway idk i figured you might have because he blocked me on fb again.

Katrina:             Oh I didn't [emoticon] but I didn't tell him anything, I only messaged him today saying don't talk to my friend and stop asking her for threesomes

Complainant:    ahok coz yea i have no idea why he blocked me again though lol

but yea make sure your friend doesn't go near him

because he doesn't take 'no' for an answer

Katrina:             I mean technically he did rape you because you were quite drunk so you couldn’t consent, so you could press charges, I kinda feel like that would be the only way he’d understand that he has an issue

Complainant:    that’s how I feel too

but i think he technically raped me another time before that

we were having sex and he was doing anal. it felt really uncomfortable and i didn’t like it. so after a minute i told him to stop and pressed  my hand against his chest to get him to stop.

he stopped for like ten seconds

then started going again. he was on top of me in the car. After he didn’t listen to me, i just kinda zoned out and closed my eyes and waited for it to be over”. (emphasis added).

This last emphasised passage of the dialogue was a reference to what had occurred on 18 February 2016 (see [4] and [5] above). The earlier statement in this passage that “he doesn't take 'no' for an answer” is also relevant.

27. Later on 22 March 2016, beginning at approximately 8.51pm, Katrina sent screenshots to the complainant of a conversation that Katrina was having virtually simultaneously with the applicant. In that separate dialogue, Katrina accused the applicant of having raped a girl, referring to the complainant. Katrina sent the applicant a screenshot of the complainant’s accusation set out at [25] above. The applicant denied the allegation that he had raped the complainant whilst she was drunk (this being a reference to the subject matter of the third offence charged), saying at approximately 8.52pm:

“Applicant:        I’ve never fucked a girl who was drunk.

Who are you talking about?

…

She got on top of me. She was riding me.

She kept kissing me when I was trying to sleep.

I didn’t grab her, I wasn’t rough at all.

I remember all of it and I promise that’s how it went.

I swear to God on my life. She kept trying to fuck me.

Katrina:           Obviously you’re going to defend yourself and so is she, I’m not saying her word is true nor am I saying yours is either, but from what I’ve heard, she can’t remember parts of the night because of [how] drunk she was so if anything happened between those times, she couldn’t have consented, she may have been telling you to fuck her but if you had known she was drunk you should have said no

Applicant:         I was drunk too

I was passed out.

She said she was sick, tired.

Listen. Wait one second for me please”.

28. The applicant then set out a message which he asked Katrina to send to the complainant which was in the following terms:

“[Complainant]. I did not fucking rape you. I did not grab you and I did not force you to do anything you wanted. I lied next to you and you continuously tried to touch me and you asked me to fuck you. You moaned like crazy, you begged me to keep fucking you. I did not force anything. I cannot stress this fucking fact enough. You got on top of me and you were riding me. Do not fucking say to anyone I raped because that is 10000% a lie. May God kill me now if I’m lying. I swear on everything”.

29. After Katrina sent a screenshot of the message at [28] to the complainant, Katrina’s conversation with the applicant continued with her saying “See the thing is, you may prove yourself innocent with that but there was another incident.” She then sent the applicant a screenshot of that part of her dialogue with the complainant that has been emphasised at [26] above, this being the encounter on 18 February 2016.

30. Katrina, having sent the screenshots of her dialogue with the applicant to the complainant, then continued her dialogue with the complainant, with the latter saying as follows:

“look with the first instance, i know i can’t even defend myself because i can’t remember what happened

but first of all

he just said he was ‘drunk’

he told the whole group conversation

that he hadn’t had [sic] much to drink that night at all, but he felt sick because of how it mixed with the antidepressants

so he’s lying about that

everyone can definitely testify he was NOT drnk

but i fucking swear if he denies the other incident

because i will stand behind everything [i] said that just happened …” (emphasis added).

Again, the passage emphasised in this extract is a reference to the encounter on 18 February 2016.

31. Katrina then sent the complainant further screenshots of the conversation she was virtually simultaneously having with the applicant, which contained his response to the allegations about the 18 February 2016 encounter. The dialogue between Katrina and the applicant derived from these screenshots was as follows:

“Applicant:        She told me she was uncomfortable. I stopped for a while, I tried it again to see if it felt different and if she liked it.

She didn’t, so I stopped.

I made a mistake with that one. I don’t know what’s wrong with me. I should have completely stopped. I wish I could turn back time and changed what I did that night. But I didn’t drug a girl, I didn’t pin her down and force her, I didn’t rape a girl in an ally. I was so caught up in the moment of having sex that I didn’t stop when I should have.

Katrina:            She said no and you still did it, it doesn’t matter the circumstance, by law it’s rape as she didn’t consent

You could get into serious trouble over it, I hope you know that

Applicant:         Do you think that I [sic] what I deserve?” (emphasis added).

32. After receiving the screenshots extracted at [31] above, the conversation between Katrina and the complainant continued, with the complainant saying:

“at least he’s not denying it

you know what he actually said that time?

when i told him it was uncomfortable

and that i didn’t like it

he said ‘don’t you want me to cum?’

honestly idc anymore, i'm reporting him”.

33. Following receipt of this message, Katrina sent the complainant further screenshots of the dialogue she was having with the applicant at approximately 10.24pm as follows:

“Katrina:           You can get therapy and try to change.

Applicant:         I will. I’ve already booked lessons with a phycologist [sic]

And I’m seeing a therapist

That was one week [sic] moment I had in my entire life. It won’t happen again. I’m not a monster, I try to treat everyone right.

Imagine how you would feel if your girlfriend got in [sic] top of you and fucked you and told all her friends she couldn’t remember anything and you raped her. When she did everything”

Katrina:            That doesn’t excuse the first incident tho

Look all I’m saying, she can easily press charges and you can get into serious trouble, but if you actually get the help you need, she won’t do it as at the moment, her and I both feel you need help

Applicant:         I will get help.

…

I will change, I will do whatever it takes to destroy any part of me that doesn’t stop when a girl asks me too [sic]. I truly believe rape is disgusting. I have not for a single second considered raping a girl. It truly sickens me and I wouldn’t wish it on my worst of enemies.

I need to be stronger during sex and not loose [sic] control. I will change and never touch a girl again who wasn’t completely willing…” (emphasis added).

The “first incident” as emphasised in this extract was a reference to the encounter of 18 February 2016.

34. In the early hours of 23 March 2016, at 12.36am, the complainant sent Katrina a copy of a conciliatory message the applicant had evidently sent to her, in which he asked her to forget about him and to please stop talking to others about him (presumably a reference to Katrina). The complainant then said to Katrina:

“i am SO upset though about what he said about that first time he raped me

Notice how he said i told him to stop and felt uncomfortable like 3 fucking times

and 1) i don’t believe we actually went back into the shops that day

because after it happened i was OBVIOUSLY not happy with him

I was upset, I told him he didn’t stop and that could be considered rape

We did NOT fuck later that day

why the fk would i have sex with him again after he kept fucking me after I said no and stopped

stop*

…

oh and one last thing, sorry about this. He only actually stopped fucking me like a good min or two after I said stop. That was when I just closed my eyes and just zoned out because I thought it would be over quicker if I gave up”.

35. In the early hours of 24 March 2016, the applicant, referring to the encounter on 18 February 2016, sent the following message via Facebook Messenger to Katrina:

“Applicant:        And that wasn’t the full story.    

We were fucking for a decent amount of time. Kissing, the whole nine yards. I wanted to fuck her ass, we started and she said she felt uncomfortable. I stopped for a while, kissed her and asked how she feels. I slowly started again and she said she didn’t feel comfortable once more. So I stopped and asked if I could stay inside her and I laid down on top of her and kissed her

I tried once more, she said stop and I pulled out. Afterwards we went shopping and fucked again later that day.

And fucked the day after

And fucked several times after that for the next 3 weeks

So if you think she should press charges against me you are truly crazy. I had content [sic]. She is my girlfriend. I didn’t force myself onto her, I didn’t have intentions of rape. So tell her I made a mistake for not stopping immediately”.

1. Tumblr survey response by complainant

36. One matter relied upon by the applicant as undermining the complainant’s credit was a survey she had responded to on a Tumblr post on 19 February 2016, the day after the 18 February 2016 encounter. This survey, which was referred to by senior counsel for the applicant in his address to the jury extracted at [18] above, asked respondents to rate and describe their response to a variety of sexual topics and practices, including “public sex”, “bondage”, “spanking” and “anal”. Using the pseudonym “Lily”, the complainant had completed the survey. Under the topic of “anal”, she had entered a rating of 9 out of 10, and posted the following entry:

“I used to not be a big fan of it at the beginning, but i trained my ass to relax and take it like a good girl haha. Anal orgasms are also pretty mindblowing which is a plus. Sometimes though, my body isn't really ready for it and it can get a bit uncomfortable haha but if there's enough foreplay, it's pretty damn hot.”

37. The complainant was cross-examined in relation to this entry, and admitted writing the above entry and entering a rate of 9 out of 10. The complainant was questioned about this, as follows:

“Q:   And of course if you’re telling the truth about what you claim happened on 18 February, the anal sex against your will, its pretty surprising that you would rate anal sex in that way isn’t it?

A:   No, this is my – this was my elevated and exaggerated opinion on it. Generally anal I enjoyed. That doesn’t define whether being sexual assaulted by anal is something I enjoyed or not”.

1. taped telephone conversation

38. On 18 May 2016, the police obtained a warrant issued by a judge of this Court pursuant to the Surveillance Devices Act 2007 (NSW) to record a telephone conversation between the complainant and the applicant. This telephone conversation took place on 23 May 2016, just over 3 months after the incident the subject of count 2, and relevantly included the following exchange with respect to count 2:

“Complainant:   …And I mean for me, like, I just really want to move on from everything, like that's my main objective and I'm sure that's yours too, like we both, kind of had a very hard time with everything but basically I've been oppressing a few memories and I am a bit traumatized from a few things and I felt like if I talk to you about them maybe that would help me move on. So I'm not sure if you remember but that time in Burwood car park when we were having sex I still sometimes, like re-think about when you were on top of me and we were having sex and like, I told you to stop but you didn't and like, I just, it still kind of haunts me, like I don't know, like I just want to understand, like why you did that, like why, like did you just think it was part of, I don't know, like the sex? Like I don't know. I just, I'm trying to understand what I can do to not let that happen again.

Applicant:   Well first of all I would like to say sorry for that incident. I can say it was, you know, a moment of weakness, me, but I guess I just had a lot of experience and in the past I guess time was, like the most essential thing when it comes to starting sex, wanting to feel good is if you’re just calm and relaxed you’ll become, even sex will start to feel good. Obviously that wasn’t the situation for you. If I could take what I did back I definitely would. I didn’t do it to hurt you or to try to take, you know, your, your body when it wasn’t mine to take. I just kind of like, you know what, the reason why I always had sex was just to make you feel good and I understand you wanted me to stop and I’m sorry I didn’t stop.

Complainant:   O.K. That helps a bit. It's just like, I didn't, like, I felt like, you know, I know where that was, like most of the time, like we had sex so often and stuff and, you know, we had like, a routine and stuff but only like that one time, like it just hurt so much, like I don't know why and like I remember trying to like, push you off me and stuff and like telling you to stop like, like, you didn't and like, I guess with me, like my concern is it's not necessarily just about me but also about like, like you, like, I mean, like if you go around thinking, like that's fine, like I don't know it's not about me being angry, I'm just like worried that you think that's O.K., like I don't know, like, do you understand that you should have stopped and stuff?

Applicant:   I understand that I should have stopped. Nobody has really ever given me a guideline or told me what’s O.K. I’m kind of like just gone with the flow but I’ll try to be respectable and do exactly the wishes but, but that was just one example when I let my emotions get the best of me and I’m sorry it hurt so much.

    …

    I didn’t do it with bad intentions.

Complainant:   So do you wish that if you went back, like you wish you'd stopped when I told you to?

Applicant:   I do wish I had stopped when you, when you told me to. Yes.” (emphasis added).

1. ERISP interview

39. The applicant was interviewed by the police on 27 May 2016, four days after the taped telephone call with the complainant. A transcript of this electronically recorded police interview was in evidence.

40. The interview covered the subject matter of all three of the counts upon which the applicant was subsequently charged. The passages from the police interview relevant to the events of 18 February 2016 were as follows:

“Applicant:   …It was a very, very sexual relationship. You know. It’s probably 80 per cent of the reason she was dating me. On that particular day from what I recall, the memory, um, we decided to do anal. That is one of the, you know, something she loves, something I love. Um, why I proceed to, to, to, you know, to have anal. She seemed a little uncomfortable. Right? And she asked me to stop. What I did then is I paused. I said, no problem. I don’t know the exacts words I said, but I said, That’s fine, OK. I stayed inside her, I stopped moving, um, you know, thrusting in other words, for may be, er, 30 seconds. And, um, I asked her again, I go, Do you want me to try again? I believe she said, Yes. But it, I have a vague memory. Um, I started to thrust again. She seemed uncomfortable. She said, Stop. I stopped completely. I kissed her on her forehead and, um, I apologised for, for not stopping completely. And on that particular day I just remember being so passionate, so caught up in the moment, um, I’m not here to justify my actions, you know, I, but to me the situation just seemed calm and relaxed. Um, but afterwards, maybe 2, 2 days afterwards she's like to me, you know, What happened on that, that day? I was not comfortable with. And actually, even, even that, afterwards that incident, we went shopping again. And then we had sex again. Then we would have gone shopping a bit more and had sex again. Let me just mention that to you. So I'm pretty sure that day, you know, there were two times afterwards, um, I had, I had sex with her. The next following day, we hanged out. Right? And the next day afterwards I'm not too sure if we hanged out, but she did bring up to me that, well, what I did was wrong. I apologised to her. I said I am sincerely sorry, you know. Ah, out of all the times we've had sex, you know, so we would have hanged out, hanged out 30 times. Two times a day minimum we had sex. That's a lot of sex, right? And I, you know, um, and you know I last probably maybe 40 minutes. 30 minutes. Right? So that's a lot of sex. For 1 minute I screwed up, Officer. For 1 minute.

Question:   What, what do you mean, you screwed up?

Applicant:   Well, for, we’re talking the incident that she brought up when I didn’t stop. That whole thing lasted 1 minutes. That’s what I’m trying to explain to you. Right?

Question:   Yep.

Applicant:   Um, you know, I'm not, I'm not insane. I'd really like to have sex with a girl that wants to have sex with me. And I'm not gunna, you know, that is the cold hard truth. What happened that day from my memory it was just a lapse, it was just me fucking up. Right? I'm not gunna, you know. Because I should have stopped exactly when she told me to and not continue and, you know, not, not just say, Hang on. Let me just wait and see if starts to feel better. You know?...” (emphasis added).

41. In a later passage of the interview, the applicant was again asked about the encounter on 18 February 2016 and why he remembered it. He answered:

“…The, the following day, her saying, I thought that was rape. Well, that would have maybe kept, kept me in my mind. Not, not during that, not during that thing. It was just normal everyday sex that, you, you just, it's just, it's just sex. Nuh. That incident that lasted 1 minutes. It's not necessarily something that stayed in my mind completely. It's just the following day she mentioned that it was rape. And then my brain recorded it all. And that's why I have a vivid memory of it, Officer.”

He was then asked why he didn’t stop and replied:

“Applicant:   - [for that] particular day I think I was just very, very passionate in, and I don't have sex necessarily just for me to feel good. I also like making, you know, the girl feel good. That's, that's the whole point of it to me. Um, and I didn't stop because, simply I just, because I wanted to give her pleasure. For, you know, that's the main reason.

Question:   Even though she was saying, Stop, it hurt, and it's uncomfortable, was hurting her?

Applicant:   Um, and I was gunna continue to say other stuff … you know, I've had a lot of sex in my life, maybe, I dunno, 6, 6 hundred times. Maybe more. Um, and I, I find when doing anal, right, if you take a moment to breath and relax and be calm, right, it usually, er, tends to feel good. Every, every other time where, you know, a girl might have mentioned, Oh, it's a little bit painful. Which is just a natural thing to, natural reaction to anal sex. Um, I say, OK. You know what? Let me just chill, just relax and then see if it feels better. And it always has. Except for this one occasion with [the complainant]. I don't know if her body had a different reaction, that day, but, ah, you know, we have had sex, anal, like 30 times before. So it wasn't something that I was like completely, um, inexperienced with. Ah, and what I'm saying is I have a lot of experience and I, I made an educated decision to just relax.

Question:   I didn't, I didn't finalise that State, ah, paragraph. It said, Michael continued penetrating my anus with his penis for several minutes after this at which point I closed my eyes and took it, waiting it to be over. This caused me to feel empty and powerless.

Applicant:   No. I think the whole incident would have lasted around a minute, not for several minutes.”

42. Later on in the interview, the Officer in Charge told the applicant that he was going to read a portion of the complainant’s witness statement to him. The applicant was asked whether he recalled the complainant using her left hand to push the applicant’s chest area, in an attempt to get him to stop. The applicant replied as follows:

“Applicant:    No. I don't. She, she, she is a girl that is my height. OK. Right. If she aggressively pushed me, I would have gone flying. Right. And, and if she pushed me, er, um, I wouldn't have, you know, I think she, what she did, was this, just had her hand on my chest. And maybe gave it a light tap.

Question:     I, I didn't say, or she didn't say there was any extreme push.

Applicant:    Well in, in my, in my consciousness, if I was to push someone, it's with force.

Question:     Do you agree that she put her left hand onto your chest?

Applicant:    She did have a, a hand on my, I don't, I don't remember, but I'm going to say, Yes.

Question:     OK. Then she says, ah, Michael stopped moving and removed his penis from my anus. Did you do that?

Applicant:    Yes.

Question:     After about 5 seconds, Michael re-inserted his penis into my anus and continued to penetrate me. Did you do that?

Applicant:    No. I don't, I don't recall this. Can you please explain the incident from - - -

Question:     I, I'm reading it word for word.

Applicant:    Yeah, um, but can you please explain the incident how she said from beginning to end.

Question:     That's exactly what I'm doing here.

Applicant:    OK. Sorry.

Question:    OK. I'm just reading it, I'm reading from paragraphs 17 and 18 of this Statement. So I'll just read it out. After about 5 seconds Michael reinserted his penis into my anus and continued to penetrate me. I still, I still felt pain and it was uncomfortable. I said words to the effect of, Please, Babe, stop. It's really uncomfortable. Do you recall that?

Applicant:    I think that was the last thing she said before I took it out .....

Question:    Do you want to comment further on that?

Applicant:    Um, if I want to comment further is, um, I think she said, you know, Please, Babe in, in kind of like a very relaxed tone. Right. It wasn't like, Please stop. It was just like, Oh, please Babe. Stop. Um - - -

Question:    Is there anything confusing about that message to you? Please      Babe - - -

Applicant:   Just in, just in the w, just in the way it was delivered, that's all. It, it just seemed so mundane. And, um - - -

Question:    Would you agree she was withdrawing consent?

Applicant:    Yes.

Question:    Do you want me to keep reading?

Applicant:   Yeah”.

43. The applicant was specifically questioned about whether he was aware that the complainant was withdrawing consent during the incident on 18 February 2016, as follows:

“Question:   OK. Um, now Detective King asked you, um, a question regarding the 18th of February, um, where he asked you if you were aware that, um, [the complainant] was withdrawing consent?

Applicant:   Yes.

Question:   And you said, Yes.

Applicant:   Wait one moment. One moment. Right? By saying, Stop, she said, Stop. Right? Was that, Oh my God, you're raping me, stop. No. I just, oh, it's, it's extremely hard to explain my side of things. But, um - - -

Question:   Well, try.

Applicant:   Well the how the, they pay, also I'd like to mention, I'm very dominant in the bedroom. You know. I like to be extremely dominant. So, um - - -

Question:   Like, dominant?

Applicant:   Dominant, yeah.

Question:   Are you rough?

Applicant:   Rough. Exactly right. That's correct. And for, for the whole matter, she, that's what she loves as well. That's why we have such a connection. It's, er, that's why we had a connection sexually because she liked the same things that I liked. Right? But my roughness doesn't translate to taking away someone's, you know, will to consent. Um, and I'm gunna cont, you know, make that statement that, at that one point in time, that incident that lasted 1 minute, ah, she did say, Stop. Um, she said, Stop. She says, Michael, stop. I stopped thrusting. I just kissed her lips. 30 seconds later I asked, is, can I start again? I believe she said, Yes. So then I continued. Right. To thrust. She seemed uncomfortable. She said, Stop. And I immediately withdrew, apologised, not for, for, not for me continuing when she said, Stop. I apologised for hurting her. Right? Because she's my girlfriend and I care about her and I don't want to hurt her or anyone. You know. And as I said, we went shopping afterwards. We would have had sex afterwards. We would have gone, had sex the following day. And the, the other time we hanged out. That's just how the cookie crumbles.

Question:   OK. So I just want to touch on that again. I want to be, I want to clarify this.

Applicant:   Yes, Officer.

Question:   When, when you were having anal sex with [the complainant] and, and she said words to the effect of, Stop - - -

Applicant:   Yes.

Question:   - - - in your mind, were you thinking that she had withdrawn consent to have anal sex?

Applicant:   No, in my mind, in my mind, I was thinking, OK, I'm gunna slow down, I'm gunna relax, I'm gunna stop thrusting because that's where the pain is coming through, from, and that's, that's how I was thinking in my mind…”

1. Cross-examination of the complainant

44. In the course of a cross-examination which lasted some 4 days, the complainant was challenged on various aspects of this evidence. For example, the complainant was cross-examined about the difference in detail between what she told Katrina in Facebook Messenger messages, and her evidence in chief. The complainant explained that she provided additional details in her evidence because her police statement did not record every microsecond of what she experienced, that anything she had added was simply detail of the actual account, and it was all part of giving her account of what happened from her memory, which was all consistent with her statement.

45. The complainant was further cross-examined and rejected the suggestion that the applicant saying “[d]on’t you want me to cum”, to which she responded “[y]es I do”, was her indicating to the applicant that she wanted him to ejaculate. The complainant explained that she said “[y]es I do, but it’s hurting me and uncomfortable” (emphasis added). As a result, she thought he would stop after knowing that it was uncomfortable and was hurting her.

46. It was specifically put to the complainant that in her sexual relationship with the applicant prior to the incident of 18 February 2016, the word “stop” had not always meant “stop”. The complainant replied that this was completely wrong, and that she did not remember ever actually saying “stop” during sex before the incident. The complainant said that she rarely ever said “stop” unless she meant it, and that was always the case.

47. It was put to the complainant that her expectation when she answered the question “[d]on’t you want me to come?” by saying “[y]es I do, but it’s hurting me and uncomfortable” was that the applicant would go more slowly. The complainant responded:

“No. Not at all. I wanted him to be out of me. I wanted him to stop… I had already said, ‘Stop’, multiple times. How many more times did you expect me to say it? … I said, ‘Stop’, twice and I also used my hands. I thought that was enough to get him to stop”.

48. The complainant was asked why she still wanted to be in a relationship with the applicant, in light of the non-consensual incidents that she had described. The complainant explained that this was her first relationship, and that the entire relationship was not terrible. The complainant and applicant had spent time together, had conversations and she enjoyed the consensual sex. Those were the good elements of the relationship that persuaded her to stay. She also felt that she could not leave the relationship as he had videos and pictures of her. This last point was confirmed by other evidence tendered by the Crown in the trial.

Applicant’s submissions

49. As outlined at [10] above, the sole ground of appeal was that the jury’s verdict was unreasonable or unsupportable having regard to the evidence.

50. In written submissions, it was submitted on the applicant’s behalf that the jury’s verdicts with respect to counts 1 and 3 meant that they must have had doubt about the credibility of the complainant’s version on those counts and that, consistent with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, that is a doubt that they were obliged to take into account when considering count 2.

51. In oral submissions, whilst conceding that acquittal in relation to two of the counts did not compel a conclusion that the complainant must be taken generally to be untruthful, Mr Ozen, submitted that:

“[t]here is, of course, in a case such as this a fair deal of overlap between a claim by an applicant that there are ‑ that the verdict or verdicts was unreasonable or unsupportable and potentially a ground of inconsistent verdicts. Inconsistent verdicts is not a ground of appeal in this case; however, clearly the applicant relies on evidence and findings with regards in particular count 1 in support of the argument that this appeal should be allowed”.

52. Mr Ozen summarised the reasons put to the jury by counsel for the applicant at trial, as to why they would have a doubt regarding count 2 as follows:

“There was no denial that sex had occurred, and it had included anal sex, but a denial that the appellant did so in circumstances where he was aware or reckless as to whether the complainant was consenting to its continuation. It was in these circumstances that other items of evidence, in the form of documents and electronic records, became important.

Her first complaint was over a month after the alleged incident. The appellant and complainant did not live together. The complainant conceded that she was free to end this relationship at any point, that she and the appellant continued to have sex, including rough sex, and anal sex, after count 2. She met with the complainant the day after, and published her responses to a ‘survey’ listing her like of rough sex, and anal sex, giving it a 9/10”.

53. This argument was developed further in oral submissions, with Mr Ozen submitting that:

“…So, what I am saying, why I am pleading these circumstances in support of the appeal is that I say this gives us an idea of what must have occurred on the 18th because if the complainant is right, and this is the second time she is in fact sexually assaulted and that she is clearly saying ‘stop’, ‘don't do it’ on several occasions, pushing this man away, then it is at least unusual that she would continue, not just the relationship, but sexual intercourse in exactly the same way, escalating and indeed on the next day make that Tumblr post about the survey regarding anal sex.

So, for those reasons, I say that the jury ought to have had a doubt about whether in fact the situation was as clear as the complainant was making out, or indeed the situation was closer to the one described again, in a nutshell at page 22 in that extract, where, having been told ‘no’, the applicant asks whether, again I'm paraphrasing, whether he can continue. The answer is ‘yes but’ and you see what he says was going on in his mind following that”.

54. In response, the Crown submitted that it was clearly open to the jury not to be satisfied beyond a reasonable doubt in respect of counts 1 and 3 for reasons completely unrelated to the complainant’s credibility. For instance, with respect to count 1, there was no evidence of complaint, the incident was only reported to police some 18 months after it occurred, and there was nothing in evidence which would have allowed the jury to assess the applicant’s reaction to the allegation.

55. With respect to count 3, the level of the complainant’s intoxication, which she admitted in the Facebook Messenger exchange with Katrina, raised a significant issue concerning the reliability of the little memory she had of the evening in question.

56. In oral submissions, Mr Ozen submitted that an extract from a message sent by the applicant to Katrina (see [35] above) in which he indicated that he “had content [sic: consent]” was indicative that the applicant was saying that he “thought she at that point was consenting, or at least consenting for [him] to try to continue”. Indeed, Mr Ozen submitted that:

“[t]he way the issues were met at trial, on my reading of it, was merely a question of whether the Crown could make out beyond reasonable doubt that the applicant was reckless as to whether the complainant was consenting or not. That is, it seemed to be a concession by the end of the case that on the evidence a jury could find, and perhaps would find, that the complainant was in fact at that point not consenting”.

57. Mr Ozen submitted that a number of statements made by the applicant, including that “what I did was wrong” (see [40] above), “I will get help” (see [33] above), and “I made a mistake with that one” (see [31] above) were “post fact realisations” or “post fact acceptance” of the complainant’s lack of consent, and such realisations “ought to be taken by this Court and it ought to have been taken by the jury as something he realises after the fact”.

58. Similarly, in relation to the taped telephone conversation which took place on 23 May 2016, Mr Ozen submitted that the following passage, extracted at [38] above,

“If I could take what I did back I definitely would. I didn’t do it to hurt you or to try to take, you know, your, your body when it wasn’t mine to take. I just kind of like, you know what, the reason why I always had sex was just to make you feel good and I understand you wanted me to stop and I’m sorry I didn’t stop”,

compelled a conclusion that there was no admission by the applicant to knowing or being reckless as to whether the complainant was not consenting, at the time of the incident. Rather, Mr Ozen submitted that these were clearly expressions that the applicant now understood that the complainant did not want him to continue, and that he was apologising accordingly. Mr Ozen submitted that:

“[t]he realisation he may have done something wrong, in hindsight, is not the same as being aware at the time that he was proceeding without her consent. The appellant submits that this is not, in truth an admission”.

59. Likewise, the applicant’s statement that “I do wish I had stopped when you told me to” during the taped telephone conversation (see [38] above) was submitted orally to be an “expression of regret” which is how “he is feeling when he is having this conversation with the complainant”.

60. During oral submissions, with respect to this statement by the applicant, the following exchange occurred between Wilson J and Mr Ozen:

“WILSON J:   Is it not also capable of being read, and this perhaps arguably is perhaps the way the jury read it, as your client having heard the request to him to stop, known what that meant, proceeded in any event because he was caught up in the moment of having sex, as he says in his message, but that he didn't at that time consider that act to equate to ‘raping a girl in an alley’, so rather than not having been aware of consent, the issue of knowledge or what was in his mind is more to the point that he wasn't aware that proceeding after the withdrawal of consent is legally the same as ‘raping a girl in an alley’. Is it not capable of that reading?

OZEN:           Your Honour, I say, when your Honour takes the totality of his responses, that the answer to that question is no. At the time he felt when she said ‘stop’ that he stopped. He felt that in the circumstances he had consent to proceed. It turns out he didn't”.

61. In relation to the electronically recorded interview with police, and the applicant’s response (see [40] above) that:

“For 1 minute I screwed up, Officer. For 1 minute”,

Mr Ozen again submitted that this needed to be read in the context of allegations having been made, namely that he sexually assaulted the complainant on 18 February 2016, rather than as an admission as to what he appreciated at the time was occurring. Mr Ozen submitted that:

“…his answer is at least likely to be an acknowledgement, in hindsight, having been told by text and on the phone, that the complainant was not consenting, as it is an admission. Clearly, when read as a whole, his ERISP strongly denies he ever engaged in sexual intercourse knowing or being reckless as to whether the complainant was consenting”.

Consideration

62. In my opinion, the jury’s verdict on count 2 was not unreasonable, and the applicant has not established that it should be overturned.

63. It was well open to the jury to conclude that the applicant was, at the time of the encounter, aware that the complainant wished him to stop penetrating her and had withdrawn her consent.

62. There is no doubt that the applicant had communicated her desire for him to cease both verbally and physically, by pushing him away.

63. There is also no doubt that the applicant was well aware that the complainant had asked him to stop on several occasions. This was not a case of him not having realised that fact at the time. On his own account, he continued after the complainant’s protests after a pause and more gently, in the expectation that the pain which had caused the complainant to ask him to stop would be less severe or disappear.

64. There was a clash between the complainant’s account and the applicant’s account as to how long after she had asked him to desist that he continued to penetrate her anally. On this issue, the jury had the full benefit of seeing the complainant in the witness box and hearing her account.

65. Her account was also supported by a number of the complainant’s statements to Katrina well prior to charges having been laid, as well as by various statements by the applicant which were capable of being understood as admissions by the applicant that he did not stop after he knew the complainant had wished him to. The applicant’s approach seems to have been to assume that he could make the pain which had actuated the complainant’s protest disappear by adjusting his technique. This was, at the very least, reckless to continue, notwithstanding his knowledge of the complainant’s discomfort and protestations.

66. Although some of the applicant’s statements after the event may be capable of being construed as having been made with the benefit of hindsight, as Mr Ozen had submitted, they are, in my opinion, at best ambiguous. More significantly, many of the applicant’s statements are consistent only with him accepting that he persisted with anal intercourse after and in the knowledge at the time that the complainant had withdrawn her consent.

67. In particular, the statements made by the applicant as set out at [31] above, the statement in the conversation extracted at [33] above that “I will do whatever it takes to destroy any part of me that doesn’t stop when a girl asks me too [sic]”, the statements in the taped telephone call “I can say it was, you know, a moment of weakness” and “I do wish I had stopped when you, when you told me to. Yes” set out at [38] above, the statement in the police interview at [40] above that “What happened that day from my memory it was just a lapse, it was just me fucking up. Right? I'm not gunna, you know. Because I should have stopped exactly when she told me to and not continue”, all provided a firm basis for the jury to reach the verdict it did on count 2.

68. The complainant’s account of the incident was broadly consistent across both Facebook Messenger messages to Katrina, and also in her police statement. She was subjected to vigorous cross-examination, but adhered to her testimony.

69. Mr Ozen was correct not to pursue a challenge on the basis of inconsistent verdicts. For the reasons set out at [54]-[55] above, the Crown’s failure to succeed on counts 1 and 3 did not mean that the jury was bound to reject the complainant’s evidence on count 2.

70. Unlike count 3, the complainant was not affected by alcohol at the time of the events the subject of count 2 and her complaint in relation to it was made very soon afterwards. Indeed, on the applicant’s account to the police and contrary to a submission made on his behalf, the complainant complained of the encounter on 18 February 2016 within a couple of days of it having occurred (see [40]-[41] above). She also made such a complaint clearly in her Facebook Messenger messages to Katrina, just over 4 weeks later (see at [26], [30] and 32] above).

71. For all of the above reasons, I do not consider, to use the language of M v R at 494, that “there is a significant possibility that an innocent person has been convicted”, and that a miscarriage of justice has occurred.

Orders

74. I would grant leave to appeal but dismiss the appeal.

75. DAVIES J:   I have had the advantage of reading the judgment of Bell P in this matter. His Honour has set out the factual background and his reasons for concluding that the appeal should be dismissed. I agree with his Honour’s reasons.

76. I am satisfied from my own examination of the evidence at the trial that it was open to the jury to determine beyond reasonable doubt that the applicant was guilty of the offence in count 2. In particular, it was open to the jury to conclude from the Facebook messages posted on 22 and 23 March 2016 by the applicant, from what he said in the taped telephone call of 23 May 2016, and from his answers in the ERISP conducted on 27 May 2016, that the applicant was at least reckless as to whether the complainant was consenting to his continuing with the sexual intercourse in the car on 18 February 2016.

77. It was put to the jury by the applicant’s senior counsel in his closing address that all of those statements were made with the benefit of hindsight, and that the statements did not reflect his state of mind at the time that he was engaging in the act of sexual intercourse. This was also a matter emphasised by Mr Ozen at the hearing of the appeal. The jury must have rejected that interpretation of the applicant’s statements.

78. Nowhere in those statements does the applicant contrast his thinking at the time with his later thinking brought about by reflection on what had occurred. It was open to the jury to conclude from those statements that they reflected the applicant’s thinking and knowledge at the time, and that he was remorseful at the time of making the statements because he knew that at least he had been reckless about whether the complainant was consenting.

79. WILSON J: I am grateful to the President, whose judgment I have seen in draft. His Honour’s conclusions, and the reasons he has given for them, accord with my own. I also agree with the observations of Davies J. 

80. I agree with the orders proposed by the President.

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Decision last updated: 16 July 2020